w 


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3$*" 


i 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


s 


•• 


{ 


Attorney  at  Law* 

HUMBOLDT,  Richardson  Co.  NEBRASKA 


V 

4       "•- 


'   > 


THE 


LAW 


OF 


CONTRACTS  AND  PROMISES 

eapon  V avion*  Subjects 

AN» 
WITH  PARTICULAR  PERSONS. 

AS    SETTLED    IN   THE 

ACTION  OF  ASSUMPSIT. 

IN  THREE  PARTS. 


A 


BY  SAMUEL  COMYN,  ESQ. 

OP   THE    MIDDLE    TEMPLE,     BARRISTER   AT    LAW. 

If- 


THE    THIRD    AMERICAN,    FROM    THE    LAST    LONDON    EDITION  .WITH 
NOTES,    AND    REFERENCES    TO    AMERICAN    AUTHORITIES. 

BY  THOMAS  HUNTINGTON, 

COUNSELLOR   AT    LAW. 


NEW  YORK: 

COLLINS    AND    HANNAY PEARL    STREET. 

1831. 


E.  &  G.  Merriam,  Printers,  Brookfield,  Mass. 


r 

C1392  c 


SOUTHERN  DISTRICT  OF  NEW  YORK,  SS. 

BE  IT  REMEMBERED,  that  on  the  16th  day  of  April,  A.  D.  1S31,  in  the  55th 
year  of  the  Independence  of  the  United  States  of  America,  Collins  &  Hannay,  of  the 
said  District,  have  deposited  in  this  office,  the  title  of  a  Book,  the  right  whereof  they  claim 
as  Proprietors  in  the  words  following,  to  wit : 

"The  Law  ofContracts  and  Promises  upon  various  Subjects  and  with  particular  Persons, 
as  settled  in  the  action  of  Assumpsit.  In  three  Parts.  By  Samuel  Comyn,  Esq.  Of  the 
Middle  Temple,  Barrister  at  Law.  The  Third  American,  from  the  last  London  Edition  ; 
with  Notes,  and  References  to  American  authorities.  By  Thomas  Huntington,  Counsellor 
at  Law." 

In  conformity  to  the  Act  of  the  Congress  of  the  United  States,  entitled,  "An  Act  for  the 
encouragement  of  Learning,  by  securing  the  copies  of  Maps,  Charts,  and  Books,  to  the 
authors  and  proprietors  of  such  copies,  during  the  time  therein  mentioned."  And  also  to 
an  Act.entitled  "  An  Act,  supplementary  to  an  Act,  entitled  an  Act  for  the  encouragement 
of  Learning,  by  securing  the  copies  of  Maps,  Charts,  and  Books,  to  the  author?  and  pro- 
prietors  of  ^such  copies,  during  the  times  therein  mentioned,  and  extending  this  benefits 
thereof  to  the  arts  of  designing,  engraving,  and  etching  historical  and  other  prints.* 

&  «    £    ^^        *4^      ^     Cmk of  mMttheiTViWm^reto  York. 


•  • 


ADVERTISEMENT 


A  new  Edition  of  this  Work  having  been  called  for,  the 
Author  has  carefully  reviewed  the  various  subjects  of 
which  it  treated  ;  and,  to  render  the  Work  as  generally 
useful  as  possible,  has  thought  it  advisable  to  make  an  en- 
tirely new  arrangement.  He  has  also  abridged  many  of 
the  cases  cited  in  the  former  Edition,  and  added  such  as 
have  been  determined  since  its  first  Publication.  The 
present  Edition  is  now  submitted  to  the  Public  in  the  hope 
that  the  Work  will  still  be  found,  as  the  Author  originally 
intended  it  to  be,  a  useful  book  of  reference  ;  and  that 
it  will  save  the  necessity  of  a  long  and  laborious  research 
into  a  vast  variety  of  detached  reports  of  cases  which  the 
particular  subjects  here  treated  of  embrace. 

s.  a 

Serjeant's  Inn,  Fleet  Street, 
July  1st,  1824. 


TABLE  OF  THE  CONTENTS. 


PART  THE  FIRST. 


CHAPTER  I. 

Page 

OF  the  General  Nature  and  Parts  of  a  Contract  and 
Promise.  1 

CHAPTER  II. 

1.  OF  the  Construction  of  Contracts  and  Agreements  ; 
And  of  a  Penalty  or  Stipulated  Damages  annexed- 
2.  Of  the  Cancelling  and  Rescinding  of  a  Contract. 
And  3.  Of  the  Performance  of  a  Contract.  23 

CHAPTER  III. 

OF  the  Stamping  of  Contracts  and  Agreements.  44 

CHAPTER  IV. 

OF  Contracts  and  Promises  declared  Illegal  by  the 
Common  and  Statute  Law.  53 

CHAPTER  V. 

OF  the  Statute  of  Limitations,  or  within  what  Time 
an  Action  upon  Promises  must  be  brought  68 


VI  TABLE    OF    THE    CONTENTS. 


PART  THE  SECOND. 

OF  THE    SUBJECT    MATTER   OF   CONTRACTS 

AND  PROMISES. 

CHAPTER  I. 

Page 

OF  Contracts  for  the  Sale  and  Delivery  of  Goods,  &c, 
and  of  the  Statute  of  Frauds  relating  thereto  ;  and 
also  of  Warranties  on  Sales  by  Sample  or  otherwise.     77 

CHAPTER  II. 

OF  Guarantees  or  Promises  to  be  answerable  for  the 
Debt  or  Default  of  Another ;  and  of  the  Statute  of 
Frauds  relating  thereto.  189 

CHAPTER  III. 
OF  Contracts  for  Services  and  Works.  231 

CHAPTER  IV. 

ON  Promises  to  Pay  over  Money  Had  and  Received 
By  One  Person  to  the  Use  of  Another ;  and  in  what 
cases  an  Action  lies  for  the  Recovery  thereof.  266 

CHAPTER  V. 

ON  Promises  to  Repay   Money  Lent  and  Advanced.    382 

CHAPTER  VI. 

ON  Express  and  Implied  Promises  to  Repay  Money 
Paid,  laid  out,  and  expended  to  and  for  the  Use  of 
Another.  389 

CHAPTER  VII. 

ON  Promises  to  Pay  Money  Due  upon  an  Account 
Stated.  417 


TABLE    OF    THE    CONTENTS-  VH 

CHAPTER  VIII. 

Page 

ON  Promises  to  pay  Interest ;  and  upon  what  Con- 
tracts or  Debts  Interest  is  Recoverable.  420 

CHAPTER  IX. 

OF  Contracts  to  Accept  or  Transfer  Public  Stock.        426 

CHAPTER  X. 

OF  Agreements  not  to  carry  on  Trade  within  certain 
Limits,  &c.  438 

CHAPTER  XI. 

OF  Agreements  for  the  Sale  or  Relinquishment  of  Of- 
fices, &c.  443 

CHAPTER  XII. 

OF  Contracts  to  Marry :  and  of  Agreements  to  Pay 
Money  in  Consideration  of  Marriage ;  and  of  the 
Statute  of  Frauds  relating  thereto.  453 


PART  THE  THIRD 

OF   CONTRACTS   AND   PROMISES  BY  AND  BE- 
TWEEN PARTICULAR   PERSONS. 

CHAPTER  I. 

OF  Contracts  By  and  Between  Partners  ;  and  Who 
may  be  Deemed  a  Partner,  and  made  Liable  to 
Partnership  Debts  and  Contracts :  And  How  Part- 
ners must  Sue  and  be  Sued.  463 

CHAPTER  II. 

OF  Contracts  By  and  Between  Master  and  Servant.     521 


Vlll  TABLE    OF    THE    CONTENTS. 

CHAPTER    III. 

OF  Contracts  with  Factor,  Broker,  or  Agent  on  behalf 
of  his  Principal,  and  of  their  respective  Liabilities.    535 

CHAPTER   IV. 

OF  Contracts  with  Agents  of  Government,  or  other 
Public  Bodies  ;  or  with  an  Officer  in  the  Army  on 
Behalf  of  a  Regiment,  &c.  563 

CHAPTER  V. 

OF  Contracts  with  Carriers,  Wharfingers,  and  Ware- 
housemen ;  and  their  respective  Liabilities.  568 

CHAPTER  VI. 

OF  Husband  and  Wife  ;  and  of  Contracts  made  by  the 
Wife  before  and  after  Marriage  ;  and  of  their  respec- 
tive Liabilities  :  and  of  Contracts  made  with  Per- 
sons living  together  as  Man  and  Wife.  598 

CHAPTER  VII. 

OF  Contracts  with  Infants  ;  and  of  the  Liability  of  Pa- 
rent or  Child  for  Necessaries.  618 


TABLE 


OF 


THE  CASES  CITED. 


A. 

Abbotts  v.  Barry 
Abel  v.  Sutton 
Adam  v.  Richards 
Adams  v.  Lindsell 

v.  Fairbairn 

Agace,  Exparte 
Alcinbrook  v.  Hall 
Alderson  v.  Pope 
Aldridge  v.  Ewen 
Alfred  v.  Marquis  Fitzjames 

v.  Home 

Allen  v.  Burnet 

v.  Impet 

v.  Dundas 

Alpass  v.  Watkins 

Alves  v.  Hodson 

Amie  v.  Andrews 

Anchor  v.  The  Bank  of  Engl 

Anderson  v.  Heyman 

v.  Scott 

Andrew  v.  Robinson 
Andrews  v.  Cawthorne 
Anstey  v.  Marden 
Arden  v.  Sharp 

v.  Rowney 

Arundel  v.  Trevilian 
Astley  v.  Reynolds 

v.  Weldon 

Atkinson  v.  Ritchie 
Aubert  v.  Walsh 
Austen  v.  Craven 
Ayliff  v.  Archdale 


B. 

gaglehole  v.  Walters 
Bainbridge  v.  Pickering 
Baker  v.  Charlton 
Baldey  v.  Parker 

B 


Page 
170.  277 
493 
127 
107 
315 
484 
385 
481 
533 
530 
577 

98 
302 
348 
307 

46 
220 
294 
192 

89 
275 
379 
199 
492 
281 

56 
339 

33 
109 
373 
148 
626 


and 


121 
624 
465 

86 


Ball  v.  Dunsterville 
Banfill  v.  Leigh 
Bank  of  England  v.  Glover 
Barber  v.  Fox 

v.  Dennis 

Barclay  v.  Gooch 

Baring  v.  Corrie 

Barjeau  v.  Walmsley 

Barker  v.  Sutton 

Barley  v.  Gouldsmith 

Barlow  v.  Broadhurst 

Barrett  v.  The  Duke  of  Bedford 

Barrow,  Ex  parte 

Bartlett  v.  Viner 

v.  Tuchin 


Barton  v.  Glover 

v.  Hanson 

Baston  v.  Bennett 

v.  Butter 

Bate  v.  Cartwright 
Beauchamp  v.  Borrett 
Beaumont  v.  Meredith 
Becher  v.  Jones 
Beck  v.  Evans 
Bedford  v.  Deakin 
Bedwell  v.  Cotton 
Bell  v.  Drummond 
Bellairs  v.  Ebsworth 
Bennett  v.  Farnell 
Berry  v.  Young 
Bevan  v.  Hill 
Bever  v.  Tomlinson 
Biddle  v.  Levy 
Biggs  v.  Lawrence 
Bilbie  v.  Lumley 
Bingham  v.  Serle 
Bird  v.  Randall 
Birkett  v.  Willan 
Bishop  v.  Shillito 
Bize  v.  Dickason 
Blachford  v.  Preston 


64. 


Page 
503 
554 
384 
217 
527 
400 
535 
384 
106 
129 
419 
410 
474 
261 
308 

32 
480 
225 
239 
273 
332 
474 
424 
577 
507 
215 
529 
212 
293 
328 
184 
588 
169 
177 
338 
306 

38 
579 
185 
338 
451 


TABLE  OF  THE  CASES  CITED. 


Blenkinsop  v.  Clayton 
Bloxam  v.  Pell 
Bodenham  v.  Bennett 

v.  Purchas 

Bolton  v.  Prentice 

v.  Richards 

Bonbonus,  Exparte 
Bond  v.  Gibson 
Bonnel  v.  Foulk 
Bordenave  v.  Gregory  344. 

Bosanquet  v.  Wray 
Bosden  v.  Sir  John  Thinn 
Bourne  v.  Mason 
Boydell  v.  Drummond 
Boyter  v.  Dodsworth 
Brand  v.  Boulcott 
Bree  v.  Holbeck 
Brett  v.  Pretyman 
Bridge  v.  Wain 
Brisbane  knt.  v.  Dacres 
Bristol,  Earl  of,  v.  Wilsmore 
Bristow  v.  Waddington 
i  ■".  Taylor 

v.  Eastman 

Brook  v.  White 
Brown  v.  Dixon 

v.  Hodgson 

v.  M'Kinally 

Browne  v.  Garborough 

Browning  v.  Morris 

Bruce  v.  Hunter 

Buchanan  v.  Parnshaw 

Buck  v.  Buck 

v.    Hatfield 

Buckler  v.  Buttivant 

Buckman  v.  Levi 

Buckmyr  v.  Darnall 

Buller  v.  Harrison 

v.  Fisher 

Bunn  v.  Guy 

Burdon  v.  Webb 

Burgess  v.  Merrill 

Burrough  v.  Skinner 

Butler  v.  Heane 

Butterfield  v.  Burroughs 

Button  v.  Corder 

Butts  v.  Swann 

Byne  v.  Playne 

C. 

Caldwell  v.  Ball 
Calton  v.  Bragg 
Cailiff  v.  Danvers 
Camfield  v.  Gilbert 
Camm  v.  Alder 
Campbell  r.  Hall 


Page 
89 
469 
578 
513 
602 
183 
495 
483 
579 
434 
472 
17 
21 
233 
377 
402 
317 
221 
118 
336 
173 
66 
508 
620 
181 
243 
391 
341 
458 
376 
425 
127 
364 
158 
397 
140 
190 
299 
588 
441 
415 
483 
272 
575 
124 
118 
52 
222 


Cannan  v.  Bryce 

Carlen  v.  Drury 

Carter  v.  Toussaint 

Cartwright  v.  Rowley 

Case  v.  Roberts 

Castling  v.  Aubert  198. 

Catt  v.  Howard 

Chalie  v.  Duke  of  York 

Chambers  v.  Griffith 

Champion  v.  Plummer 

v.  Short 

Chandelor  v.  Lopus 
Chandler  v.  Parkes 
Chaplin  v.  Rogers 
Chater  v.  Beckett 
Cheap  v.  Cramond 
Chesby  and  wife  v.  Nain 
Child  v.  Hardyman 
Chorley  v.  Bolcot 
Clark  v.  Shee 

v.  Noel 

Clarke  v.  Hutchins 
v.  Glennie 

Clay  v.  Willan 

Clayton  v.  Andrews 

v.  Hunt 

Clayton's  case 

Clugas  v.  Penaluna 

Cobban  v.  Downe 

Cobden  v.  Kendrick 

v.  Bolton 

Cockshott  v.  Bennett 

Coggs  v.  Bernard  14. 

Cole  v.  Gower 

Collins  v.  Blantern 

Colt  v.  Netterville 

Cooke  v.  Munstone 

v.  Oxley  79. 

v.  Ludlow 

Coope  v.  Eyre 

Cooper  v.  Smith 

v.  Elston 

v.  Martin 

Cork  v.  Baker 

Cotton  v.  Thurland 

Cox  v.  Prentice 

Cowell  v.  Edwards 

Cowley  v.  Dunlop 

Cowlin  v.  Cooke 

Crawshay  v.  Eades 

v.  Maule 


165  Crifford  v.  Berry 
420  Cripps  v.  Read 
593  Crockford  v.  Winter 
316  Crow  v.  Rogers 
273   Cuff  v.  Penn 
357  I  Cuming  v.  Brown 


Pag« 

387 
473 
89 
324 
301 
.  299 
503 
424 
Sll 
97 
105 
120 
629 
88 
201 
471 
439 
613 
246 
375 
183 
140 
417 
573 
82 
576 
510 
64 
592 
344 
576 
20 
242 
316 
53 
85 
321 
108 
137 
476 
98 
94 
630 
457 
272 
299 
401 
397 
214 
156 
465 
278 
317 
297 
21 
92 
165 


TABLE  OF  THE  CASES  CITED. 


XI 


Cummingv.  Roebuck 
Curteis  v.  Bridges 
Curtis  v.  Hannay,  baronet 

D. 

Dale  v.  Birch 

v.  Hall 

Davis  v.  Edgar 

v.  Mason 

v.  Reynolds 

■  v.  James 

Davies  v.  Pinner 
Davison  v.  Heslop 
Dawes  v.  Peck 
Dawson  v.  Linton 
-  ■  v.  Remnant 


Page 
103 
527 
128 


351 

585 
364 
441 
158 
582 
424 
215 
583 
394 
418 
480 
283 
600 
424 
501 


De  Berkom  v.  Smith 
De  Bernales  v.  Fuller 
De  Gaillon  v.  L'Aigle 
De  Haviland  v.  Bowerbank 
Denton  v.  Rodie 
Derry  v.  The  Duchess  of  Mazar- 
ine 600 
De  Silvale  v.  Kendall  326 
De  Symonds  v.  Minchwich  179 
Devaynes  v.  Noble  510 
Dew  v.  Parsons  354 
Dewberry  v.  Chapman  325 
Dickenson  v.  Lilwal  104 
Dimsdale  v.  Lanchester  292 
Dowe  v.  Holdsworth  512 
Drinkwater  v.  Goodwin  560 
Drury  v.  Defontaine  60 
Dry  v.  Boswell  473 
Duff  v.  India  Company  508 
Duke  of  Norfolk  v.  Worthy  305 
Duncan  v.  Skipwith  290 
Dunlop  v.  Waugh  126 
Durant  v.  Titley  612 
Dutch  v.  Warren  322 
Dutton  and  wife  v.  Pool  21 

E. 

Eades  v.  Vandeput  527 
Eagleton  v.  East  India  Com- 
pany 135 
Eardley  v.  Price  258 
East  India  Company  v.  Pullen  590 
Edwards  v.  Hodding  309 

v.  Sherratt  588 

Egerton  v.  Matthews  95.  206 

Eagles  v.  Vale  416,  417 

Eland  v.  Karr  183 


Elliott  v.  Edwards 
Ellis  v.  Hunt 

v.  Hamlen 

v.  Mortimer 

v.  Turner 

Elmore  v.  Stone 
Elsee  v.  Gatward 
Elton  v.  Brogden 
Emanuel  v.   Dane 
Emly  v.  Lye 
Errington  v.  Aynesley 
Etherington  v.  Parrott 
Evans  v.  Bennett 
v.  Martlett 


Evelyn,  bart.  v.  Chishester 
Everett  v.  Collins 
Ewers  v.  Hutton 
Exall  v.  Partridge 
Eyles  v.  Faikney 

F. 

Farebrother  v.  Ansley 
Farmer  v.  Robinson 
Farnsworth  v.  Garrard 
Farrer  v.  Nightingale 
v.  The  Countess  Dowa- 


Pagc 
316 
153 
238 
106 
580 

89 
241 
125 
130 
499 

32 
607 
302 
584 
626 
184 
605 
393 
415 


104. 


ger  of  Granard 
Favenc  v.  Bennett 
Feise  v.  Wray 
Fell  v.   Brown 
Feltham  v.  Terry 
Fenner  v.  Meares 
Fenton  v.  Emblers 
Fielder  v.  Starkin 
Fish  v.  Hutchinson 
Fisher  v.  Leslie 
v.  Samuda 


Fleming  v.  Simpson 
Fletcher  v.  Dyche 
Flureau  v.  Thornhill 
Ford  v.  Fothergill 
Fores  v.  Johnson 
Forsyth  v.  Jervis 
Fortune  v.  Lingham 
Forward  v.  Pittard 
Foster  v.  Stewart 
v.  Scarlett 


Foster's  Case 

Fuller  v.  Abrahams 

Fydell  v.  Clark 

Fytche  v.  Bishop  of  London 


G. 


Gale  v.  Reed 


404 
545 
240 
314 

602 
549 
158 
247 
347 
281 
232 
126 
200 

47 
187 
188 

31 
310 
625 
178 
185 
322 
569 
259 

14 

16 
134 
289 

56 


442 


xn 


TABLE  OF  THE  CASES  CITED. 


Gallini  v.  Laborie 

Gallway  v.  Matthews 

Gardiner  v.  Gray 

Garforth  v.  Fearon 

Garment  v.  Baivs 

Garrett  v.  Taylor 

Garsitle  v.  The  Proprietors  of 
the  Trent  and  Mersey  Navi- 
gation 

George  v.  Claggett 

Geraldes  v.  Donison 

Germain  v.  Burrows 

Germaine  v.  Barton 

Gibbon  v.  Paynton 

Giles  v.  Edwards 

Gillan  v.  Simpkin 

Gillett  v.  Mawman 

Glyn  v.  Hertel 

Glyn,  Bart.  v.  Baker 

Godfrey  v.  Turnbull 

Golden  v.  Manning 

Goodall  v.  Skelton 

Goode  v.  Jones 

■ v.  Harrison 

Gordon  v.  Martin 

— —  v.  Swan 

Gouger  v.  Jolly 

Gouthwaite  v.  Duckworth 

Govier  v.  Hancock 

Gower  v.  Popkin 

Grace  v.  Smith 

Graham  v.  Hope 

v.  Tate 

. v.  Jackson 

Grant  v.  Vaughan 

Gratland  v.  Freeman 

Greave3  v.  Ashlin 

v.  Hepke 

Green  v.  Austin 

Greenway  v.  Hurd 

Grimaldi  v.  White 

Groning  v.  Mendham 

Groves  v.  Buck 

Gunnis  v.  Erhart 

H. 

Hagedorn  v.  Laing 
Hall  v.  Odber 
Hammond  v.  Anderson 
Hamper  ex  parte 
Hanson  v.  Roberdeau 

v.  Meyer 

v.  Armitage 

Hardress  v.  Prowd 


Page 
256 
497 
113 
413 
125 
515 


570 
551 
336 
131 
187 
572 
323 
326 
259 
209 
277 
505 
580 
142 
298 
483 
260 
424 
579 
479 
613 
341 
469 
504 
394 
108 
282 
522 
131 
149 
353 
356 
186 
139 
83 
309 


Harman  v.  Anderson 
Harris  v.  Huntback 

. v.  Richards 

v.  Morris 


Hardy  v.  Martin 


108.  131 
419 
144 
473 
309 
145.  160 
93 
255 
33 


Harris's  Case 
Harrison  v.  Jackson 
. v.  Cage 


Hartley  v.  Rice 
Harvey  v.  Gibbon 
Hasser  v.  Wallis 
Hatchett  v.  Baddeley 
Hawkins  v.  Rutt 
Hawkshaw  v.  Parkins 
Hayward  v.  Scougall 
Hazard  v.  Treadwell 
Hebden  v.  Rutter 
Heckscher  v.  Gregory 
Henderson  v.  Wild 
Hereford  v.  Powell 
Hern  v.  Nichols 
Hesketh  v.  Blanchard 
Heyman  v.  Neale 
Hiccoxv.  Proud 
Hicks  v.  Hicks 
Higgins  v.  Sargent 
Highmore  v.  Primrose 
Hill  v.  Gray 
Hilberds  v.  Pettipierre 
Hinde  v.  Waterhouse 

v.  Whitehouse 

Hiscox  v.  Greenwood 
Hoare  v.  Dawes 
Hodge  v.  Vavisor 
Hodges  v.  Hodges 
Hodgson  v.  Davies 

v.  Le  Brett 

v.  Loy 

Hogan  v.  Shee 
Holcombe  v.  Hewson 
Holman  v.  Johnson 
Holmes  v.  Blogg 
Holt  v.  Ward 
Hope  v.  Cust 
Horsfall  v.  Handley 
Horsley  v.  Bell 
Houlditch  v.  Desanges 

v.  Milne 

Houle  v.  Baxter 
Howard  v.  Castle 
Howard  v.  Hopkins 
Howe  v.  Palmer 
Howes  v.  Martin 
Howson  v.  Hancock 
Hudson  v.  Granger 

v.  Robinson 

Humphries  v.  Carvalho 
Hunt  v.  Bate 


Page 

87 

193.  382 

215 

604 

16 
503 
453 
456 

22 
350 
609 
184 
504 
108 
522 

12 
432 
507 
561 
545 
478 
103 
264 
333 
422 
418 
186 
58.  81 

94 
100 
525 
474 

19 
605 

39 

89 
157 
349 
118 
175 
482 
454 
487 
380 
667 
153 
197 
396 
133 

38 

90 
395 
374 
549 
502 
107 
15 


TABLE  OF  THE  CASES  CITED. 


xai 


Hunt  v.  Silk 
Hutton  v.  Eyre 
v.  Mansell 

I.J. 

Jackson  v.  Dwchaise 
Jacques  v.  Golightly 
Jee  v.  Thurlow 
Jennings  v.  Harley 

v.  Rundall 

Jestons  v.  Brooke 

Jeudwine  v.  Slade 

Jewry  v.  Bush 

Ingram  v.  Shirley         135.  185, 

Johnson  v.  Johnson 

v.  Hudson 

v.  Collings 

Jones  v.  Bowden 

v.  Clark 

v.  Cooper 

. v.  Brinley 

Irvin  v.  Wilson 
Israel  v.  Douglas 
Izett  v.  Mountain 


Page 
313 
403 
454 


L. 

Laing  v.  Fidgeon 
Lamb  v.  Bunce 
Langston  v.  Corney 
Langton  v.  Hughes 
La  Neuville  v.  Nourse 
Law  v.  Hodgson 
Layfield's  case 
Leake  v.  Lord  Pigot 
Lee  v.  Munn 
Leery  v.  Goodson 
Leggett  v.  Cooper 
Le  Sage  v.  Cousmaker 


171 

374 
611 
216 
619 
367 
119 
265 
418 
312 
178 
288 
118 
18 
192 
262 
358 
279 
573 


K. 

Kannen  v.  M'Mullen  245 

Keate  v.  Tample  194 

Kennedy  v.  Nash  415 

Kent  v.  Huskinson  9 1 

Kenrig  v.  Eggleston  570 

Kerr  v.  Osborne  272 

Kilsby  v.  Williams  286 

King  v.  Scrape  375 

Kingston  v.  M'Intosh  424 
Kirby  v.  Duke  of  Marlborough 

211.  228 

Knibbs  v.  Hall  345 

Knowles  v.  Michell  418 

Kymer  v.  Suwercropp  553 


117 
245 
297 

65 
121 

66 
501 
340 
310 
275 
187 
264 


Lett  v.  Cowley 
Lickbarrow  v.  Mason 
Lightfoot  v.  Creed 
v.  Tennant 


Lightly  v.  Clouston 
Lills  v.  Laing 
Lindon  v.  Hooper 
Little  wood  v.  Williams 
Livesay  v.  Hood 
Lodge  v.  Dicas 
Longchamp  v.  Kenney 
Longdill  v.  Jones 
Lorymer  v.  Smith 
Love's  case 
Lowe  v.  Peers 

v.  Waller 

Lutterlow  v.  Halsey 

M. 


Page 
158 
161 
391 
65 
259 
391 
348 
380 
130 
509 
276 
353 
110 
221 
30.  56.  455 
61 
566 


Maberley  v.  Robins 
Macbeath  v.  Haldimand 
M' Arthur  v.  Lord  Seaforth 
M'lver  v.  Richardson 
M'Neil  v.  Perchard 
Mackenzie  v.  Banks 

v.  Scott 

Madden  v.  Kempster 
Maddock  v.  Rumball 
Mairv.  Glennie 
Male  v.  Roberts 
Manby  v.  Scott 
Manton  v.  Moore 
Marriot  v.  Hampton 
Marryatts  v.  White 
Marsh  and  Rainsford's  case 
Marshall  v.  Rutton 
Martin  v.  Hind 

■ v.  Morgan 

Martyn  v.  Blithman 
Mason  v.  Pritchard 
Matson  v.  Wharam 
Medina  v.  Stoughton 
Meggot  v.  Mill3 
Mellish  v.  Motteux 
Melville  v.  Haydon 
Menvel  v.  Whiney 
Meredith  v.  Chute 
Merle  v.  Wells 
Mertens  v.  A.dcock 
Merryweather  v.  Nixon 
Mesnard  v.  Aldridge 
Meyer  v.  Everth 
Miller  v.  Shawe 
v.  Aris 


104. 


Mills  v.  Ball 
Mitchell  v.  Lapage 


306 

563 

436 

207 

351 

51 

546 

348 

431 

473 

627 

607 

151 

341 

228 

459 

598 

256 

290 

223 

210 

192 

116 

512 

121 

212 

484 

219 

211 

131 

403 

127 

113 

180 

354 

158 

104 


XIV 


TABLE  OF  THE  CASES  CITED. 


Mitchell  v.  Reynolds 
Montagu  v.  Tidcombe 
Moore  v.  Voughton 

v.  Wilson 

Morgan  v.  Richards 

. v.  Corder 

Morris  v.  Martin 

v.  Cleasby 

v.  Burdett,  Bart. 

Morse  v.  Slue 
Morse  v.  Williams 
Moses  v.  Macferlan 
Mucklow  v.  Mangles 
Munn  v.  Baker 
Mussell  v.  Cooke 
Mussen  v.  Price 
Myrtle  v.  Beaver 

N. 

Nathan  v.  Giles 
Nerot  v.  Wallace 
Newby  v.  Wiltshire 
Newdigate  v.  Davy 
Newmarch  v.  Clay 
Newsome  v.  Thornton 

v.  Coles 

Nicholson  v.  Willan 
Nickson  v.  Brohan 

v.  Jepson 

Nightingale  assignee  v. 
Nisbit  v.  Smith 
Noble  v.  Adams 
Norman  v.  Cole 
Norris  v.  Napper 
Northay  v.  Field 
Norton  v.  Fazan 
Nurse  v.  Craig 

0. 


Ogle  v.  Atkinson 

Ollivierson  v.  Coles 

Onslow  v.  Eames 

Orr  v.  Churchill 

Osborne  v.  Guy's  Hospital 

Osey  v.  Gardner 

Owen  v.  Gooch 

Owenson  v.  Morse  142. 

Oxford,  St.  John's  College  v. 

Murcott 
Oxley  v.  Young 


Devisme 


Page 
55.  438 
227 
425 
583 
187 
556 
613 
551 
260 
579 
290 
342 
152 
579 
84 
179 
566 


165 
22 
531 
347 
514 
159 
505 
574 
527 
182 
275 
224 
172 
262 
277 
159 
614 
611 


152 
431 
126 
36 
264 
165 
555 
181 

352 
227 


P. 

Packhurst  v.  Smith 
Parker  v.  Brown 

v.  Palmer 

Parkinson  v.  Lee 
Parnther  v.  Gaitskill 
Parsons  v.  Blandy 

v.  Thompson 

Payne  v.  Whale 
v.  Cave 


Peacock  v.  Harris 
Pearce  v.  Rogers 
Pearle  v.  Unger 
Peck  v.  Wood 
Peel  v.  Tatlock 

v.  Baxter 

Penhorn  v.  Tuckington 
Pepper  v.  Burland 
Peter  v.  Compton 
Phillips  v.  Bateman 
Philips  v.  Astling 
Philpott  v.  Wallet 
Pickard  v.  Bankes 
v.  Bonner 


Pickering  v.  Appleby 

v.  Busk 

v.  Barclay 


Pierson  v.  Hutchinson 
v.  Dunlop 


Pike  v.  Ledwell 

Pitt  v.  Yalden 

Plymouth,  Countess  of,  v.  Throg 

morton 
Pordage  v.  Cole 
Porter  v.  Palsgrave 
Poulter  v.  Cornwall 
Powell  v.  Divett 
v.  Millbank 


Page 


25 
452 
111 
113 
298 
359 
448 
321 
132 
419 
524 

18 
409 
226 
167 
424 
236 
232 
209 
229 
456 
275 
364 

84 
543 
587 
184 
287 
431 
254 


Power  v.  Wells 
Precious  v.  Abel 
Price  v.  Lea 

v.  Nixon 

v.  Neale 

Prosser  v.  Hooper 
Prouting  v.  Hammond 

Q. 

Queensbury,  Duke  of,  v.  Cullen 
in  error 


530 
41 
424 
270 
104 
378 
320 
522 
91 
182 
293 
123 
275 


R. 


Raba  v.  Ryland 
Rami  v.  Hughes 
Rapp  v.  Latham 


484 

8 

503 


TABLE  OF  THE  CASES  CITED. 


xv 


Rawlyns  v.  Vandyke 
Read  v.  Nash 

v.  Hutchinson 

Redshaw  v.  Jackson 
Reed  v.  Mestaer 
Rex  v.  Dodd 
Ribbans  v.  Crickett 
Rice  v.  Shute 

v.  Everitt 

Richards  v.  Borrett 

v.  Barton 

Ridley  v.  Taylor 
Robinson  v.  Lewis 

v.  Bland 

< v.  Anderton 

v.  Hendman 

Robison  v.  Gosnold 
Robson  v.  Godfrey 

v.  Andrade 

■  v.  Eaton 

Rogers  v.  Kelly 

v.  Reeves 

Rolfe  v.  Peterson 
Rondeau  v.  Wyatt 
Rothwell  v.  Humphreys 
Roy  v.  Duke  of  Beaufort 
Rucker  v.  Cammeyer 
Rugg  v.  Minett 
Rusby  v.  Scarlett 
Russell  v.  Palmer 
Rutter  v.  Hebden 

S. 

Salmon  v.  Watson 
Salomons  v.  Nissen 
Samuel  v.  Howarth 
Sanders  v.  Kentish 
Sandhill  v.  Jenny 
Sandilands  v.  Marsh 
Saunders  v.  Wakefield 
Saunderson  v.  Jackson 
Saville  v.  Robertson 
Scarmanv.  Castell 
Schneider  v.  Heath 
Scott  v.  Pettit 
Scurneld  v.  Gowland 
Searle  v.  Keeves 
Selway  v.  Holloway 
Sharp  v.  Warren 
Sheppard  v.  Johnson 
Shepherd  v  Kain 

v.  Beecher 

Shepley  v.  Davis 
ShirrefT  v.  Wilks 
Shove  v.  Webb 


Page 

608 

196 

171 

290 

181 

474 

66 

566 

Ibid 

331 

311 

496 

413 

62.  385 

318.  327 

530 

604 

237 

272 

348 

289 

223 

29 

82 

500 

29 

99 

146 

524 

253 

453 


418 

160.  161 

224 

435 

459 

485 

205 

96 

479 

532 

121 

159 

330 

87 

580 

270 

436 

123 

211 

149 

491 

328 


Sidenham  and  Worlington's  case 

Simmons  v.  Keating 

Simon  v.  Motivos  or  Metivier 


Page 
16 
209 
100 


Simpson  v.  Ingham 
v.  Bloss 


228.  509 
373 
584 
33 
156.  160 
67.  368 
398 


Skinner  v.  Upshaw 
Sloman  v.  Walter 
Slubey  v.  Hey  ward 
Smith  v.  Bromley 

v.  Nissen 

v.  Dickinson  36 

v.  Jameson  602 

v.  Goss  158 

v.  Kelly  49 

v.  Mercer  296 

v.  Shepherd  586 

v.  Dennis  379 

v.  Home  57  9 

v.  Lascelles  558 

Snaith  assignee,  &c.  v.  Gale         396 

Snee  v.  Prescott  154 

Snowden  v.  Davis  346.  354 

Southall  v.  Leadbetter  407 

South  Sea  Company  v.  Duncomb  383 

Sparrow  v.  Carruthers 

Splidt  v.  Heath 

Spragg  v.  Hammond 

Stockpoll  v.  Earle 

Stadt  v.  Lill 

Stedman  v.  Gooch 

Steers  v.  Lashley 

Stephens  v.  Squire 

Stephenson  v.  Hardy 

Stevenson  v.  Mortimer 

Stewart  v.  Fry 

v.  Smith 

St.  John  v.  St.  John 
Stokes  v.  Lewis 

v.  Twitcher  324 

Stone  v.  Carr 


Stoveld  v.  Hughes 

Strange  v.  Lee 

Stratton  v.  Rastall 

Stubbing  v.  Heintz 

Swaine  v.  Morland  351 

Swan  v.  Steele 

Symonds  v.  Carr 

Symmons  v.  Want 


Tappenden  v.  Randall 
Tate  v.  Wellings 
Tatlock  v.  Harris 
Taylor  v.  Mills  and  Magnali 


599 
109 
395 
451 
206 
181 
63 
196 
382 
357 
288 
412 
612 
392 
364 
632 
159 
213 
333 
523 
364 
488 
142 
208 


372 

430 
292 
399 


XVI 


TABLE  OF  THE  OASES  CITED. 


Taylor  v.  Hare 
v.  Higgins 

DO 

v.  Lendy 

Teed  v.  Elworthy 
Tempest  v.  Fitzgerald 
Temple  v.  Welds 
Tenant  v.  Mackintosh 
Thomas  v.  Whip 

— v.  Day 

Thomason  v.  Frere 
Thompson  v.  Hervey 
Thornton  v.  Kempster 
Thrnpp  v.  Fielder 
Thurston  v.  Mills 
Todd  v.  Stokes 
Tomkins  v.  Bernet 
Tounsend  v.  Hunt 
Towers  v.  Sir  John  Osbourne 

v.  Barrett 

Townson  v.  Wilson 

Trent  Navigation  Company  v. 

Harley 
Tubb  v.  Harrison 
Tuck  v.  Ruggles 
Turner  v.  Phillips 

v.  Davies 

v.  Hoole 

Tuson  v.  Batting 

Tyly,  Sir  Joseph,  v.  Morrice 


Page 
324 
400 
272 
483 
90 
272 
301 
350 
594 
499 
603 
104 
629 
351 
610 
366 
17 
82 
319 
360 

227 
630 
567 
333 
403 
370 
244 
571 


V. 


Vale  v.  Bayle 
Vere  v.  Lewis 
Virany  v.  Yarne 

U. 

Upsdell  v.  Stewart 
Usher  v.  Dauncey 

W. 

Waddington  v.  Bristow 

v.  Oliver 

Wain  v.  Warlters 

Walford  v.  The  Duchess  of  De 

Pienne 
Walker  v.  Chapman 

v.  Perkins 

v.  Dixon 

Wallace  v.  Breeds 

Wallay  v.  Montgomery 

Warcop  v.  Morse 

Ward  v.  Evans 

Waring  v.  Cox  160. 

Warwicke  v.  Noakes 

Waters  v.  Glossop 


137 
293 
255 


243 

500 


141 
184 

202 

600 
365 

55 
141 
147 
166 

19 
278 
165 
184 
214 


Waters  v.  Mansell 
Watkins  v.  Vince 
Watson  v.  Threlkeld 
Waugh  v.  Carver 
Wayland's,  Sir  Robert, 
Waymell  v.  Reed 
Webb's  case 
Weddell  v.  Lynam 
Wells  v.  Masterman 

v.  Ross 

Welsh  v.  Welsh 
Wennall  v.  Adney 
Weston  v.  Downes 

v.  Barton 

Wettenhall  v.  Wood 
White  v.Wilks 
Whitehouse  v.  Frost 
Whitfield  v.  Savage 
Whittingham  v.  Hill 
Whitwell  v.  Bennet 
Wightman  v.  Townroe 
Wilbean  v.  Ashton 
Wild  v.  Fort 
Wilder  v.  Griffin 
Wilkinson  v.  King 

v.  Frasier 

Willett  v.  Chambers 
Williams  v.  Leper 

v.  Harrison 

v.  Everett 

v.  Cranston 


v.  Hedley 

v.  Thomas 

v.  Keats 

v.  Millington 

Wiltshire  v.  Sims 
Wilson  v.  Milner 

v.  Freeman 

v.  Dickson 

Winkworth  v.  Mills 
Wish  v.  Small 
Withers  v.  Lys 

D  arm  ah 
Lawes 
Wrightson  v.  Pullan 

T. 

Yate  v.  Willan 
Yates  v.  Pirn 
-v.Bell 

Axtell 


Wright  v 


Young  v 


Z. 


Zagury  v.  Farnell 
Zwinger  v.  Samuda 


Page 
333 
202 
615 
466 
case         522 
64.  177 
261 
331 
490 
297 
399 
532 
320 
213 
387 
148 
147 
287 
618 
288 
482 
36 
308 
361 
167 
473 
502 
197.  222 
619 
284 
5S0 
362 
49S 
506 
546 
542 
354.  416 
57S 
592 
201 
473 
146 
98 
157 
500 


580 
110 
286 
481 


149 
150.  160 


THE  LAW 


OF 


CONTRACTS    AND    PROMISES 


PART  THE  FIRST. 
CHAPTER  I. 

OF  THE  GENERAL  NATURE  AND  PARTS  OF  A 
CONTRACT  AND  PROMISE. 

A  contract  is  an  agreement  or  mutual  bargain  between  two  contracting  par- 
ties ;  and  is  entered  into  either  verbally,  that  is,  by  word  of  mouth  only,  or  in 
writing.  When  reduced  into  writing,  it  is  either  subscribed  with  the  hands  and 
seals  of  both  the  contracting  parties,  or  merely  with  one  or  both  of  their  signa- 
tures. Such  contracts  or  agreements  as  are  reduced  into  writing  under  hand 
and  seal,  are  technically  called  deeds  or  specialties  ;  and  those  which  are  mere- 
ly verbal,  or  in  writing  not  under  seal,  are  denominated  simple  contracts,  or  con- 
tracts by  parol  :  for  it  is  said,  («)  that  '■'  by  the  law  of  England  all  contracts 
are  distinguished  into  agreements  by  specialty  and  agreements  by  parol."  A 
promise  is  in  the  nature  of  a  verbal  covenant,  and  is  either  express  or  implied. 
The  present  work  will  treat  only  of  agreements  not  under  seal ;  for  in  trade  and 
commerce,  as  well  as  in  the  ordinary  transactions  of  business  between  individ- 
uals, contracts  and  agreements  are  most  commonly  entered  into  either  by  word 
of  mouth,  or  in  writing  with  their  signatures  merely.  Contracts  and  agreements 
of  this  description,  however,  are  oftentimes  expressed  in  such  vague  and  uncer- 
tain terms  as  to  render  it  extremely  difficult  to  determine  the  real  meaning  and 
intention  of  the  parties  ;  and  it  not  unfrequently  happens  that  questions  arise 
either  upon  the  legality  of  the  subject  matter  of  the  contract  or  promise  ;  the 
competency  of  the  parties  to  contract ;  or  the  extent  of  their  respective  liabili- 
ties. When  these  difficulties  *occur,  they  too  frequently  give  birth  to  disputes 
and  differences  between  the  parties,  and  commonly  terminate  in  an  action  at  law, 
which  is  technically  called  an  action  of  assumpsit,  and  is  prosecuted  either  for 
the  recovery  of  a  fixed  and  ascertained  sum  of  money,  or  for  uncertain  and  un- 

(o)  Per  Ld.  Ch.  B.  Skynner,  7  Term  Rep.  350.  n.  a. 

1  *2 


2  Of  the  Nature  and  Parts  [Part  1 . 

liquidated  damages  for  the   non-performance  of  the  contract  or  promise ;  and 
these  damages  can  only  be  reduced  to  a  certainty  by  the  verdict  of  a  jury. 

The  species  of  contract  proposed  for  consideration  is  defined  in  our  law  books, 
to  be  a  bargain  or  agreement  voluntarily  made,  upon  a  good   consideration,  be- 
tween two  or  more  persons  capable  of  contracting,  to  do  or  forbear  to  do  some 
lawful  act ;  as  if  a  man  sells  or  exchanges  cattle  or  goods  for  money  or  any  other 
commodity,  or  agrees,  in  consideration  of  a  sum  of  money,  to  make  a  lease  of 
lands,  or  forbear  to  prosecute  a  legal  claim,  &c.     And  these  are  valid  contracts, 
because  there  is,  what  lawyers  term  quid  pro  quo,  or  one   thing  for  another. 
But,  if  a  man  without  any  other  consideration  than  mere   good  will,  or  natural 
affection,  make  a  voluntary  promise  to  give  to  another  a  sum  of  money,   as  for 
instance,  20/.,  and  that  he  will  be  his  debtor  for  that  sum  ;  this  is  no   contract, 
but  a  mere  naked  promise  or  nudum  pactum:   for,  however  a  man  may  or  may 
not  be  bound  to   perform  such  a  promise  in    honour  or  conscience,  which  the 
municipal  laws  of  this  country  do  not  take  upon  them  to  decide,  certainly  those 
municipal  laws  will  not  compel  the  execution  of  what  he  had  no  visible  induce-' 
ment  to  engage  for:   and  therefore  our  law  has  adopted  the  maxim  of  the  civil 
law  that,  ex  nudo  pacto  non  oritur  actio.     But  any  degree  of  reciprocity  will 
prevent  the  agreement  or  promise  from  being  classed  under  this  rule  ;  and  there- 
fore, in  the  instance  put,  if  any  thing,  however  trifling,  were  done,  or  to  be  done 
or    given  for  the  20/.,  it  would  be  a  valid  contract,  and  binding  upon  the  par- 
ties, (b)     And  it  is   observed, (c)   that  every  contract  and'  agreement  ought  to  * 
be  so   certain  and  complete  that  each  party  may  have  an  action   or  other  rem- 
edy upon  it ;  and  for  this   purpose  six  things    appear  necessary  to  concur;  1.  A 
person  able  to  contract ;  2.  A  person  capable  to  be  contracted  with  ;  3.  A  thing 
/  to  be  contracted    for  ;  4.  A  good  and  sufficient  consideration  or  quid  pro  quo  ; 
5.  Clear  and  explicit  words  to  express  the  contract  or  agreement ;  6.    The  as- 
sent of  both  the  contracting  parties,  (d)      So,  every  contract  should  be  obliga- 
tory on  both  the  contracting  parties,  or  both  should  be  at  liberty  to  recede  there- 
from, (e)     But  to  an  agreement  or  contract  there  is  no  prescribed  form  of 
words,  but  any  words  which  show  the  assent  of  the  parties  are  sufficient,  (f) 

A  contract  or  agreement  conveys  an  interest  either  in  possession,  or  in 
*action;  as  if  A.  agrees  to  change  horses  with  B.,  and  they  do  it  immediately ; 
or  if  goods  are  sold  and  delivered  and  paid  for  at  one  time  ;  here  the  possession 
and  the  right  are  transferred  together  ;  and  such  contract  or  agreement  being 
executed  and  complete,  is  commonly  termed  an  executed  contract.  But  where 
A.  for  a  valuable  consideration  contracts  with  B.  to  pay  him  100/.  at  a  day  to 
come  ;  in  this  case,  though  A.  thereby  transfers  a  property  or  interest  in  such 
sum  to  B.,  yet  such  property  or  interest  is  not  in  possession,  but  in  action  merely, 

(6)     Termes  de  Ley,  tit.  Contract.    PI.         (d)   Vide  PI.  Com.  164.    Co.  Lit.  35.  (b) 
Com.  302.     2  Bl.  Com.  415.  (e)  3  Term.  Rep.  653. 

(c)  PI.  Com.  5.  (02  Bl.  Com.  443. 

►3 


Chap.  1.]  Of  a  Contract  and  Promise.  3 

and  recoverable  by  suit  at  law  ;  and  the  contract  not  being  performed  is  there- 
fore usually  denominated  an  executory  contract,  (g) 

2.    OF    EXPRESS    CONTRACTS    AND    PROMISES. 

Contracts  and  agreements  without  seal  are  either  expressed  or  implied. 
Express  contracts  are  where  the  terms  of  the  bargain,  agreement,  or  prom- 
ise, are  openly  uttered  and  expressed  by  the  contracting  parties  themselves.  The 
subject  matter  of  this  class  of  contracts  relates  either  to  the  person  or  property  of 
the  contractors,  and  may  be  either  to  do  or  forbear  to  do  a  particular  act ;  as,  to 
pay  money  on  the  sale  or  exchange  of  cattle  or  goods  ;  to  pay  rent  for  the  use  and 
occupation  of  lands  or  houses  ;  to  pay  money  on  particular  mercantile  securities 
or  agreements  ;  to  pay  the  debt  of  a  third  person  ;  to  pay  money  won  or  lost  at 
play  ;  to  perform  works  ;  to  accept,  deliver,  or  take  back  goods,  &c.  ;  to  accept, 
transfer,  or  replace  stock;  to  let  or  take  lands  or  houses  ;  to  warrant  the  title  to 
lands  ;  to  warrant  the  soundness  or  quality  of  cattle  or  goods  ;  to  indemnify  ; 
to  marry  ;  to  forbear  to  sue  ;  not  to  trade  within  a  particular  distance,  &c.  And 
these  contracts  or  promises  ought  to  be  certain  and  explicit ;  but  certainty  to  a 
common  intent  is  sufficient:  (h)  as,  if  a  man  promises  another,  in  consideration 
that  he  will  assign  to  him  a  certain  term,  to  pay  him  10/.,  this  is  a  good  as- 
sumpsit,  though  the  time  of  the  assignment  and  the  payment  be  not  appointed  ; 
for  the  10/.  shall  be  paid  in  a  convenient  or  reasonable  time  after  the  assignment, 
which  also  must  be  made  within  a  reasonable  time  after  the  agreement,  (i) 
Or,  if  A.  be  indebted  to  B.  for  certain  things  to  him  sold,  and  C.  comes  to  B. 
and,  for  a  good  consideration,  promises  him  that  if  A.  should  not  pay  him  the 
money  he  will  pay  it  for  him  ;  an  action  upon  the  case  lies  for  B.  against  C. 
upon  this  promise  if  A.  does  not  pay  the  money  within  a  convenient  or  reason- 
able time ;  for  so  shall  the  promise  be  taken,  viz.  that  if  A.  does  not  pay  it 
in  a  convenient  time,  that  then  C.  will  pay  it  for  him.  (k) 

*So,  where  A.,  in  consideration  that  B.  would  marry  his  daughter,  promised 
to  give  with  her  a  child's  part,  and  that  at  the  time  of  his  death  he  would  give 
to  her  as  much  as  to  any  of  his  children,  except  his  eldest  son;  this  washol- 
den  to  be  a  good  promise ;  for  though  a  child's  part  is  in  itself  altogether  un- 
certain, yet,  it  being  shown  what  the  rest  of  the  children  had,  except  the  eldest, 
it  is  then  reduced  to  a  sufficient  ceitainty.  (/)  So,  a  promise  to  give  a  bond 
for  40/.,  without  saying  in  what  penalty,  is  good  ;  for  it  shall  be  intended  double 
the  sum.  (m) 

But,  where  the  plaintiff  declared  that,  whereas  there  was  a  communication 
between  him  and  the  defendant  concerning  the  bark  of  certain  wood,  and  that 
thereupon  it  was  agreed,  that  the  defendant  should  give  to  the  plaintiff  two  shil- 
lings per  seam  for  all  the  bark  of  such  wood  as  the  plaintiff  should  cut ;  and  that 


(g)  PL  Com.  140.  (k)   1  Rol.  Abr.  15. 1.  5. 

(A)  Com.  Dig.  tit.  Action  of  Assumpsit,  (I)  Poph.  148.     2  Rol.  Rep.  104. 

A.  3.  4.  (»i)  1  Lev.  88. 
(i)  1  Rol.  Abr.  14.  1.  50. 


4  Of  the  Nature  and  Parts  [Part  1. 

the  defendant  assumed  and  promised  to  have  ready  upon  a  certain  day  articles  in 
writing  purporting  that  agreement,  and  an  obligation  for  performance  thereof,  &c, 
the  declaration  was  holden  not  to  be  good,  because  it  was  not  said  in  what  sum 
the  obligation  was  to  be,  and  a  certain  sum  could  not  be  intended,  because  the 
number  of  seams  were  altogether  uncertain,  (n)  No  express  contract  or  agree- 
ment can  be  raised  from  a  mere  casual  speaking  or  declaration  in  discourse  ;  as, 
if  there  be  a  discourse  between  the  father  of  A.  and  B.  in  relation  to  a  mairiage 
between  A.  and  the  daughter  of  B.  ;  and  B.  in  that  discourse  declares  and  pub- 
lishes to  the  father  of  A.  that  he  would  give  to  him  v;ho  should  marry  his  daugh- 
ter with  his  consent  100/.,  and  A.  after  this  declaration  marries  the  daughter  of 
B.  with  his  consent  ;  yet  it  was  holden,  that  this  declaration  and  publication  of 
B.  shall  raise  no  promise  upon  which  an  action  of  assumpsit  may  be  brought  ; 
for  these  general  words  do  not  include  any  promise,  and  the  agreement  must  be 
complete  upon  which  an  express  assumpsit  lies,   (o) 

3.  OF  IMPLIED  CONTRACTS  OR  PROMISES. 

Implied  contracts  or  promises  are  such  as  reason  and  justice  dictate,  and 
which  therefore  the  law  presumes  that  every  man  undertakes  to  perform.  As, 
if  a  person  is  employed  by  another  to  do  any  business  for  him,  or  perform  any 
work,  and  nothing  is  agreed  upon  as  to  the  price  of  his  labour,  the  law  implies 
that  the  employer  undertook  or  contracted  to  pay  the  person  so  employed  as 
much  as  he  reasonably  deserves  for  his  labour.  So,  where  a  man  orders  goods 
of  a  tradesman  without  any  agreement  of  price,  the  law  concludes  that  the 
buyer  contracted  to  pay  to  the  seller  their  real  value,  (/>)  And  from  hence  it 
*  may  be  collected  that  all  implied  contracts  or  promises  are  founded  on  some 
legal  liability  to  pay  a  debt,  or  perform  a  duty.  Therefore,  besides  the  instan- 
ces just  mentioned,  when  money  is  lent  and  advanced,  paid,  laid  out,  and  ex- 
pended, or  had  and  received  ;  and  nothing  is  expressly  stipulated  by  the  parties 
as  to  the  repayment  thereof,  the  law  raises  an  implied  promise  that  it  shall  be 
repaid  upon  request.  So,  when  money  is  due  on  an  account  stated,  or  for  fines 
on  admissions  into  copyhold  premises ;  for  fines  and  duties  payable  to  corpora- 
tions ;  for  fees  payable  to  particular  officers  ;  for  petty  customs  and  tolls  ;  for 
general  average  ;  for  the  salvage  of  ship  or  goods  ;  for  the  carriage  or  wharfage 
of  goods  ;  for  money  due  on  awards,  or  foreign  judgments  :  So  also,  as  between 
landlord  and  tenant,  that  the  latter  shall  use  his  farm,  &c.  in  a  husband-like  and 
proper  manner :  in  these  instances  also,  and  various  others  which  might  be 
mentioned,  though  no  express  agreement  be  made,  a  legal  liability  arises,  and 
the  law  presumes  that  the  party  promised  to  pay  the  debt,  or  perform  the  duty. 

The  last  class  of  contracts  implied  by  reason  and  construction  of  law,  arises 
upon  this  supposition,  that  every  one  who  undertakes  any  office,  employment, 
trust,  or  duty,  contracts  with  those  who  employ  or  entrust  him,   to  perform  it 

(n)   1  Sid.  270.  Action  of  Assumpsit.  F.  2. 

(o)   1   Rol.  Abr.  6.  1.  40.  Com.  Dig.  tit.         (p)  2  Bl.  Coin.  413. 


#o 


Chap.  I.]  Of  a  Contract  and  Promise.  5 

with  integrity,  diligence,  and  skill ;  and  if,  by  his  want  of  either  of  those  quali- 
ties, any  injury  accrues  to  individuals,  they  have  therefore  their  remedy  in 
damages  by  action.  A  few  instances  will  fully  illustrate  this  matter  ;  as,  if  a 
surgeon,  attorney,  or  any  other  professional  person  is  guilty  of  neglect  of  duty, 
or  a  palpable  breach  of  it,  he  is  liable  to  an  action  on  an  implied  assumpsit 
or  promise  for  a  reparation  in  damages  for  the  injury  sustained  in  consequence 
of  such  neglect.  There  is  also  in  law  always  an  implied  contract  with  a  com- 
mon innkeeper,  common  carrier,  wharfinger,  warehousekeeper,  or  other  bailee 
lo  be  answerable  for  the  goods  entrusted  to  their  care  ;  with  a  common  farrier 
that  he  shoes  a  horse  well  without  laming  it ;  with  builders  and  other  workmen 
that  they  perform  their  business  in  a  workman-like  manner  ;  in  which  if  they  fail, 
an  action  on  the  case,  either  in  tort  or  assumpsit,  lies  to  recover  damages  for 
the  breach  of  their  general  undertaking.  But  if  a  person  is  employed  to  transact 
any  of  these  concerns,  whose  common  profession  and  business  it  is  not,  the  law 
implies  no  such  general  undertaking ;  but  in  order  to  charge  such  person  with 
damages  an  express  agreement  is  required,   (q) 

It  is  difficult  to  state  with  certainty  what  contracts  and  promises  are  exclusive- 
ly implied  ;  though,  as  a  general  rule,  it  may  be  observed,  that  promises  in  law 
only  exist  where  there  is  no  express  stipulation  between  the  parties  ;  for  expressum 
facit  cessare  taciturn,  (r) 

*4.  OF    THE     PARTIES     TO     A    CONTRACT. 

The  parties  to  a  contract  are  two  or  more,  namely,  the  person  or  persons 
who  contract  the  obligation  to  do  or  forbear  to  do  a  particular  act,  and  the  per- 
son or  persons  in  whose  favour  it  is  contracted.  And,  generally  speaking,  all 
persons,  except  infants  and  married  women,  having  capacity  and  understanding, 
may,  by  mutual  assent,  become  parties  to  a  contract  and  bind  themselves  and 
their  personal  representatives  to  a  performance  thereof,  (s)  In  some  cases  in- 
deed, as  will  be  shown  in  a  subsequent  part  of  this  work,  infants  and  married 
women  may  legally  enter  into  a  contract.  The  contracts  of  idiots,  lunatics, 
or  other  persons  labouring  under  a  defect  in  the  understanding,  of  such  a  nature 
as  to  render  them  incapable  of  comprehending  the  engagements  they  enter 
into,  may  be  avoided,  (t)  It  has  also  been  determined,  that  a  contract  entered 
into  by  a  man  so  drunk  as  to  be  wholly  unable  to  understand  what  he  was 
doing,  is  void  at  common  law.  («)(1)  And  though  this  decision  may  at  first 
view  appear  to  intrench  upon  the  old  common  law  maxim,  viz.  that  a  man  shall 

(q)  3  BI.  Com.  165.  (t)    Yates  v.  Boen,  Stra.  1]04. 

(r)  Per  Buller,  Just.  2  Term  Rep.  105.  (u)  Bui.  Ni.  Pri.  172.  and  Pitt  v.  Smith,  3 

(s)    1  Bac.  Abr.  tit.  Agreements.     A.  Camp.  Rep.  33. 


(1)  See  Reynolds  v.  Waller,  1  "Wash.  164.  A  contract  may  be  avoided  by  the  lecal  rep- 
resentatives of  a  party  thereto,  on  the  ground  of  his  having  been  drunk,  although  such 
drunkenness  was  not  occasioned  by  the  procurement  of  the  other  party.  Wigrtesworth  v. 
Steers,  1  Hen.  &  Munf.  70.  If  a  person,  for  any  considerable  part  of  the  time,  be  so  intoxi- 
cated as  to  deprive  him  of  his  ordinary  reasoning  powers,  it  is  prima  facie  evidence  that  he 
is  incapable  of  managing  his  aiiaira.     Per  Wahvorth,  Chancellor,     1  Pai^c,  580. 

»6 


6  Of  the  Nature  and  Parts  [Part  1. 

not  be  permitted  to  stultify  himself ;  (t>)  yet  upon  reflection  it  will  be  found  to 
be  rather  an  exception  to  the  general  rule  than  an  infringement  upon  it. 

So,  a  contract  or  promise  made  by  a  person  under  duress  or  unlawful  impris- 
onment, or  under  any  other  violent  menace  or  constraint,  which  has  the  effect 
of  preventing  him  from  exercising  the  free  use  of  his  understanding  and  judg- 
ment, may  be  avoided,  (w)  So,  no  contract  can  legally  be  entered  into  between 
a  British  subject  and  an  alien  enemy. (a;)  It  may  also  be  observed,  that  persons 
under  judgment  of  outlawry,  attainder  of  treason  or  felony,  are  incapacitated 
from  making  a  contract  for  their  own  benefit ;  for,  being  considered  in  law  as 
civilly  dead,  they  cannot  sue  in  any  court  of  law  ;  indeed  their  property,  as  well 
as  all  rights  of  action  in  respect  thereof,  are  vested  in  the  crown,  (y)  (2) 

Contracts  and  agreements  are  entered  into  by  individuals  either  for  them- 
selves or  third  persons ;  and  the  liability  of  the  parties  thereto  must  wholly 
depend  upon  the  general  nature  and  terms  of  the  contract.  Thus,  where  A. 
B.  and  C.  on  behalf  of  themselves  and  other  members  of  a  club,  entered  into 
articles  of  agreement  with  D.  to  provide  necessaries  for  the  use  and  accommo- 
dation of  the  club  ;  it  was  holden  that  the  three  were  personally  bound  by 
such  articles,  and  that  D.  was  not  *obliged  to  resort  to  any  of  the  other  mem- 
bers for  satisfaction  of  his  demands  (2)  (3). 

5.     OF    THE    CONSIDERATION    TO    SUPPORT    A   CONTRACT    OR    PROMISE. 

It  is  essential  to  every  contract  or  promise,  that  it  be  founded  upon  a  good 
consideration.  The  civilians  hold,  that  in  all  contracts,  either  express  or  impli- 
ed, there  must  be  something  given  in  exchange,  something  that  is  mutual  or 
reciprocal.  This  thing,  which  is  the  price  or  motive  of  the  contract,  we  call 
the  consideration ;  and  it  must  be  a  thing  lawful  in  itself,  or  else  the  contract 
is  void.  A  contract  for  any  valuable  consideration,  as  for  marriage,  for  money, 
for  work  done,  or  for  other  reciprocal  contracts,  can  never  be  impeached  at 
law ;  and,  if  it  be  of  sufficient  adequate  value,  is  never  set  aside  in  equity  ;  for 
the  person  contracted  with  has  then  given  an  equivalent  in  recompence,  and 
is  therefore  as  much  an  owner,  or  a  creditor,  as  any  other  person,  (a) 

These  considerations  are  divided  by  the  civilians  into  four  species  1.  Do,  tit 
des ;  as,  when  I  give   money  or   goods   on  a  contract,   that  I  shall    be  repaid 


(r)  See  Co.  Lit.  247.  2  Bl.  Com.  291,  2.  2  Barn.  &  Aid.  263.  where  the  authorities  on 

(to)  2   Inst.   482.     1   Bl.   Com.  136.     Bui.  this  subject  are  cited. 

ISTi.  Pri.  172.  (;)  Duke   of    Queensbitry    and    others    v. 

(x)   Brandon  v.  Nisbet,  6   Term  Rep.  23.  Cullen,  1  Bro.  Pari.  Cas.  396.  Svo.  edit.  Hors- 

Bristoic  v.  Towers,  ib.  35.  ley  v.  Bell,  1  Bro.  Ch.  Cas.  101.  innotis. 

(ij)  See  the  recent  case  of  Bullock  v.  Dodd,  (a)  2  Bl.  Cora.  444. 

(2)  The  process  of  outlawry  is  unknown  in  this  country,  except  in  a  very  few  of  the 
States ;  and  wherever  the  English  practice  has  been  introduced,  it  is  believed,  that,  in  per- 
sonal actions  especially,  the  forfeitures  and  disabilities  do  not  follow,  upon  judgment  of  out- 
lawry, as  in  England.  In  the  state  of  New- York,  it  is  provided  by  statute,  "  that  no  out- 
lawry in  any  personal  action,  shall  work  any  disability  or  forfeiture  whatsoever  in  favor  of 
any  other  person  than  the  plaintiff  at  whose  suit  it  shall  be  had."     1  N.  E.  L.  165. 

(3)  See  M' Williams  v.  Willis,  1  Wash.  199. 


Chap.  1.]  Of  a  Contract  and  Promise.  7 

money  or  goods  for  them  again.     Of  this  kind  are  all  loans  of  money  upon  bond, 
or  promise  of  repayment,  and  all  sales  of  goods,  in  which    there  is  either  an 
express  contract  to  pay  so  much  for  them,  or  else  the  law  implies  a  contract  to 
pay  so  much  as  they  are  worth.     2.  The  second   species  is  facio,  ut  facias  : 
as,  when  I  agree  with  a  man  to  do  his  work  for  him,  if  he  will  do  mine  for  m  e  ; 
or'if  two  persons  agree  to  marry  together  ;  or  to  do  any  other  positive  acts  on 
both   sides :  or,  it   may  be  to   forbear   on   one   side  in  consideration  of  some 
thing   done  on  the  other ;  as,  that  in   consideration  A.,  the  tenant,  will  re- 
pair his  house,  B.,  the  landlord,  will  not  sue  him  for  waste  :  or,  it  may  be 
for  mutual  forbearance  on  both  sides  ;  as,  that  in  consideration  that  A.  will  not 
trade  to  Lisbon,  B.  will  not  trade  to  Marseilles,  so  as  to  avoid  interfering    with 
each   other.     3.  The  third   species   of  consideration   is  facio,  ut  dcs  :  when 
a  man  agrees  to  perform  any  thing  for  a  price,  either  specifically  mentioned,  or 
left  to  the  determination  of  the  law  to  set  a  value  on  it.     And  when  a  servant 
hires  himself  to  his  master  for  certain  wages,  or  an   agreed   sum  of  money  ; 
here  the  servant  contracts  to  do  his  master's  service,  in  order   to  earn   that  spe- 
cific sum  :  otherwise,  if  he  be  hired  generally  ;  for  then  he  is  under  an  implied 
contract  to  perform  this  service  for  what  it  shall  be  reasonably  worth.     4.  The 
fourth  species  is  do,  ut  facias  :  which  is  the  direct  counterpart  of  the  preceding. 
As  when  I  agree  with  a  servant,  to  give  him  such  wages  upon  his  *performing 
such  work,  which,  we  see  is  nothing  else  but  the  last    species  inverted  :  for 
servusfacit,  ut  herus  det,  and,  herus  dat,  ut  servus  faciat.  (b)    A  consideration  of 
some  sort  or  other  is  so  absolutely  necessary  to  the  forming  of  a  contract,  that 
a  nudum  pactum,  or  agreement  to  do  or  pay  any  thing  on  one  side,  without  any 
compensation  on  the  other,  is  totally  void  in  law  ;  and  a  man  cannot  be  compel- 
led to  perform  it.  (c)     But  it  is  observed,  (d)  as  this  rule  was  principally  estab- 
lished, to  avoid  the  inconvenience  that  would  arise  from  setting  up  mere  verbal 
promises,  for  which  no  good  reason  could  be  assigned,  it  therefore   does  not 
hold  in  some   cases    were  such   a  promise   is  authentically  proved  by  written 
documents.     For  if  a  man  enters  into   a  voluntary  bond,  or  gives  a  promissory 
note,  he  shall  not  be  allowed  to   aver  the  want  of  a  consideration  in  order  to 
evade  the  payment ;    for  every  bond  from  the  solemnity   of  the  instrument,  and 
every  note  from  the  subscription  of  the  drawer,   carries  with  it  an  internal  evi- 
dence of  a  good  consideration.     Courts  of  justice  will  therefore    support  them 
both  as  against  the  contractor  himself;  but  not  to  the  prejudice  of  creditors  or 
strangers  to  the  contract.     This  observation,   as  far  as  it  respects  promissory 
notes,  and  other  written  contracts  not  under  seal,  is  certainly  supported  by   the 
opinion  of  Mr.  Justice  Wilmot,  in   the  case  of  Pillans  v.  Van  Mierop,  (e)  who 
said,  "  I  cannot  find  that  a  nudum  pactum  evidenced  by  writing  has  ever  been 
holdenbad;  and  I  should  think  it  good,  though  where   it  is  merely  verbal,  it  is 
bad.     Yet  I  give  no  opinion  upon    its   being  good   always  when   in  writing." 
The  law,  however,  on  this  point  is  now  settled ;  and  the  rule  is,  that  a  verbal 


(6)  2  Bl.  Com.  445. 
(c)  Ibid. 


(rf)  Ibid. 

(<•)  3  Burr.  1671. 


8  Of  the  Nature  and  Parts  [Part  1 . 

agreement,  or  promise,  though  reduced  into  writing,  is  not  valid,  without  a  good 
consideration.  (4)      Thus,  in  the  case  of  Rann  and  another,  executors  of  Mary 
Hughes  x.  Isabella  Hughes,  administratrix   of  J.  Hughes  [/),  the  declaration 
stated,  that  on  the  11th  June  1764,    divers   disputes  had   arisen  between  the 
plaintiff's  testator  and  the  defendant's  intestate,  which   they  referred   to  arbitra- 
tion ;  that  the  arbitrator  awarded   that  the  defendant's  intestate  should  pay  to 
the  plaintiff's  testator  983/.     That  the  defendant's   intestate  afterwards   died 
possessed  of  effects  sufficient  to  pay  that  sum;  that  administration  was  granted 
to  the  defendant ;  that  Mary  Hughes  died,  having   appointed  the  plaintiffs  her 
executors  ;  that  at  the  time  of  her  death   the   said   sum  of  983/.  was  unpaid, 
"  by  reason  of  which  premises  the   defendant  as    administratrix  became   liable 
to  pay  to  the  plaintiffs  as  executors    the  said  sum,  and  being  so  liable  she,  in 
consideration  thereof,  undertook  and  promised  to  pay,  &c."      Upon  a  writ   of 
error  in  the  House  of  Lords,  after  argument,  the  following  question    was  pro- 
posed   to    the   Judges   by  the    Lord    Chancellor,    "  Whether  sufficient  matter 
*appeared  upon  the  declaration  to  warrant  after  verdict  the  judgment  against  the 
defendant  in  error  in  her  personal  capacity  ?"     Upon  Avhich  the  Lord  Chief  Bar- 
on Sky nner  delivered  the  opinion  of  the  Judges  to  this  effect :  —  "  It  is  undoubt- 
edly true,  that  every  man  is  by  the  law  of  nature  bound  to  fulfil  his  engagements. 
It  is   equzlly  true,  that  the  law  of  this  country  supplies  no  means,  nor  affords 
any  remedy  to  compel  the  performance  of  an  agreement  made  without  sufficient 
consideration  ;  such  agreement  is  nudum  pactum  ex  quo  non  oritur  actio ;  and 
whatsoever  may  be  the  sense  of  this  maxim  in    the  civil  law,    it  is    in  the  last 
mentioned  sense  only  that  it  is  to  be   understood  in  our  law.     The  declaration 
states  that  the  defendant  being  indebted  as  administratrix,  promised  to  pay  when 
requested,  and  the  judgment  is  against  the  defendant  generally.     The  being  in- 
debted is  of  itself  a  sufficient  consideration  to  ground  a  promise,  but  the  promise 
must  be  co-extensive  with  the  consideration,  unless  some  particular  consideration 
of  fact  can  be  found  here  to  warrant  the  extension  of  it  against  the  defendant  in 
her  own  capacity.     If  a  person  indebted  in  one  right,  in  consideration  of  forbear- 
ance for  a  particular  time  promise  to   pay    in  another  right,  this  convenience 
will  be  a  sufficient  consideration  to  warrant  an  action  against  him  or  her  in  the 
latter  right :  but  here  no  sufficient  consideration  occurs  to  support  this  demand 
against  her  in  her  personal  capacity ;  for  she  derives  no  advantage  or  conveni- 
ence   from  the  promise  here  made.     For  if  I  promise  generally  to  pay  upon 
request,  what  I  was  liable  to  pay  upon  request  in   another  right,  I  derive   no 

(/)  7  Term  Rep.  350.  n.  a.     7  Bro.  Pari.  Cas.  551.  S.C. 

(4)  The  principle  laid  down  in  the  text,  has  been  repeatedly  recognized  in  the  United 
States.  Burnet  v.  Bisco,  4  J.  R.  235.  Pearson  v.  Pearson,  7  I.  R.  26.  Sears  v.  Brink,  3  J.  R. 
214.  The  People  v.  Howell,  4  J.  R.  296.  Union  Turnpike  Co.  v.  Jenksins,  1  Caines,  387.  Per 
Lewis,  Ch.  J.  Beverleys  v.  Holmes,  4  Munf.  95.  Parker  v.  Carter,  4  Munf.  273.  Moseley  v. 
Jones,  5  Munf.  23.  See  also  Slade  v.  Hoisted,!  Cowen,  322.  1  Bac.  Abr.  (Wilson's  edit.) 
112.  Harts'  Exrs.x.  Coram,  3  Bibb,  26.  Prior  v.  Lindsey,  3  Bibb,  76.  Cook  v.  Bradley,  7 
Conn.  Rep.  57.  W inthrop  <$-  al.  v.  Lane  Sf  al.  3Des.  310,  341.  Hosmer  v.  Hollenbeck,  2  Dnv, 
22.     Chandler's  Ex.  v.  Hill,  2  Hen.  &  Munf.  124,  130. 

*9 


Chap.  1.]  Of  a  Contract  end  Promise  0 

advantage  or  convenience  from  this  promise,  and  therefore  there  is  not  sufficient 
consideration  for  it.     But  it  is  said,  that  if  this  promise  is  in  writing,  that  takes 
away  the   necessity  of  a   consideration,  and   obviates  the  objection   of  nudum 
pactum,  for   that  cannot  be  where  the  promise  is  put  in  writing ;  and  that  after 
verdict,  if  it  were  necessary  to  support  the  promise  that  it  should  be  in  writing, 
it  will,  after  verdict,  be  presumed   that    it  was  in  writing  ;  and  this  last  is  cer- 
tainly true:  but  that  there  cannot  be  nudum  pactum  in  writing,   whatever  may 
be  the  rule  of  the  civil  law,  there  is  certainly  none  such  in  the  law  of  England. 
All  contracts  are  by  the  laws  of  England  distinguished    into   agreements  by 
specialty,    and    agreements  by  parol ;  nor    is  there   any  such  third   class,    as 
some  of  the  counsel  have  endeavoured  to  maintain,  as  contracts  in  writing.     If 
they  be  merely  written  and  not  specialties,  they  are  parol,  and  a  consideration 
must  be  proved.     His  Lordship  also  observed  upon  the  case  of  Pillans  v.  Van 
Mireop  (t),  and  the  case  of  Losh  v.  Williamson,  Mich.   16  G.  3.  in  B.  R.  and 
so  far  as  these  cases  went  on  the  doctrine  of  nudum  pactum,  he   seemed  to  in- 
timate that  they  were  erroneous.     And  he  concluded    by    saying,   that    all  his 
♦Brothers  concurred  with  him,  that  in  this  case  there   was  not  a  sufficient  con- 
sideration to  support  this  demand,  as  a  personal  demand  against  the   defendant, 
and  that  its  being  now  supposed  to  have  been  in  writing  makes   no  difference. 
The  consequence  of  which  is,  that  the  question  put  to  us  must  be  answered  in 
the  negative."  (5) 

The  same  rule  also  applies  to  promissory  notes  and  bills  of  exchange,  as 
well  as  to  all  other  contracts  in  writing  without  seal.  This  rule,  however,  ex- 
tends only  to  the  immediate  parties  to  a  bill  or  note,  and  does  not  affect  third 
persons,  who  happen  to  be  strangers  to  the  want  of  consideration  as  between 
those  parties.  For  instance,  if  an  action  be  brought  upon  a  note  or  bill,  at  the 
suit  of  the  payee  against  the  drawer,  or,  by  the  indorsee  against  the  indorser, 
for  which  no  consideration  was  given,  the  plaintiff,  in  either  case,  cannot  re- 
cover. (6)  But  the  want  of  consideration,  as  between  the  maker  and  payee 
of  a  note  or  bill,  cannot  be  set  up  in  an  aclion  against  either  of  them  at  the 
suit  of  an  indorsee,  unless  it  be  proved  that  he  was  acquainted  with  this  cir- 
cumstance at  the  time  of  taking  the  note  or  bill,  (g)  And  the  reason  why 
third  persons  ought  not  to  be  affected  by  this  rule  is,  that  bills  and  notes  being  ne- 
gotiable instruments,  by  mere  indorsement  and  delivery,  it  would  be  enabling 
the  original  parties  to  assist  in  a  fraud,  if  they  were  to  be  allowed  to  set  up 
the  want  of  consideration,  as  between  themselves,  in  bar  to  an  action  against 
either  of  them,  at  the  suit  of  an  indorsee  for  a  valuable  consideration.  And 
Lord  Mansfield  is  reported  to  have   said,  that  "  in  commercial   cases  amongst 


(t)   3  Burr.  1663. 

(V)  Vide  Bayley   on  Bills,    121.   2d  edit.     Chitty  on  Bills,  12.88.  5th  edit. 


(5)  See  Tctlliaferro  v.  Robb,  2  Call,  258.     Schoonmakerv.  Roosa,  17  J.  R.  301.     Ten  Erjckv. 
Vanderpool,  8  J.  R.  93.  2d  edit. 

(6)  See  The  People  v.  Howell,  4  J.  R.  286.     Pierson  v.  Pierson,  7  J.  R.  26.     Schoonmaker 
v.  Roosa,  ubi  supra. 

2  no 


10  Of  the  Nature  and  Parts  [Part  1 . 

merchants,  the  want  of  consideration  is  not  an  objection."  (h)  But  this  ob- 
servation, it  is  apprehended,  must  be  understood  to  apply  only  to  cases  of  bills 
and  notes  when  in  the  hands  of  an  indorsee  ;  for  in  all  other  contracts  and 
agreements,  not  under  seal,  whether  mercantile  or  otherwise,  a  consideration 
is  absolutely  necessary.  Indeed,  a  bargain  without  a  consideration  is  said  to 
be  a  contradiction  in  terms,  and  cannot  exist,  (i)  I  now  proceed  to  show 
what  consideration  will  support  a  contract  or  promise.  It  is  a  settled  rule  of 
law,  that  to  make  a  contract  or  agreement  obligatory,  the  consideration  must 
be  either  a  benefit  to  the  party  promising,  or  some  trouble  or  prejudice  to  the 
party  to  whom  the  promise  is  made  ;  (7)  otherwise  the  contract  or  agreement 
is  considered  as  nudum  pactum,  and  cannot  be  enforced,  (k)  Thus,  a.  promise 
in  consideration  of  the  forbearance  of  a  suit  for  a  certain  time,  is  good;  for 
that  is  for  the  benefit  of  the  defendant,  though  the  action  is  not  discharg- 
ed. (/)  (8)  But,  a  promise  in  consideration  of  forbearance  is  not  valid  where 
there  was  originally  *no  cause  of  action ;  as,  in  consideration  of  forbearance 
of  a  suit  upon  a  contract  made  by  a  married  woman,  (m)  (9)  A  promise  in 
consideration  of  surceasing  of  a  suit  is  good  ;  for  that  is  a  benefit  to  the  de- 
fendant, and  a  prejudice  to  the  plaintiff,  though  the  action  is  not  discharged. (n) 
So,  in  consideration  of  the  discharge  of  a  debt,  or  the  delivery  of  a  bond,  or 
other  security,  (o)  Or,  in  consideration  of  the  proof  of  a  debt,  for  it  is  a 
charge  to  the  plaintiff;  as,  if  an  executor  promise,  in  consideration  of  the 
proof  of  the  delivery  of  goods  to  his'testator,  to  pay  for  them,  (p)  So  if  the  par- 
ties agree  to  a  particular  manner  of  trial  of  the  validity  of  a  debt,  it  shall  be 
determined  in  such  manner,  (q) 

So,  in  consideration  of  any  particular  service  or  labour  by  the  party  to  whom 
the  promise  is  made  ;  as,  to  procure  the  enjoyment  of  a  house  (r)  ;  or  to  pro- 
cure a  note,  &c.  from  the  debtor  of  the  party    promising,  (s)     Or,  in  consider- 


(h)  3  Burr.  1669.  (n)  Hob.  216.     2  Bulst.  41. 

(i)  Per  Lord  Loughborough,  2  Ves.  iun.         (o)  Com.  Dig.  tit.   Action  upon  Assump- 

408.  sit,  B.  3. 

(ft)  Com.  Dig.  tit.  Action  "on  the  Case  up-         (p)  1  Leon.  93.     1  Sid.  57.  369. 

on  Assumpsit,  B.  1.  (</)  3  Lev.  241. 

(/)  Cro.  El.  337.  (r)  Yelv.  11. 

(m)  Stra.  94.  (s)  2  Vent.  71.  74. 

(7)  This  general  principle  is  confirmed  by  numerous  decisions.  Stapp  v.  Anderson,  1 
Marsh.  535,  538.  Violett  v.  Patton,  5  Cranch,  142.  Sumner  v.  Williams,  8  Mass.  Rep.  200. 
Per  Seioall  J.  Miller  v.  Drake,  1  Caines,  45.  Townsley  v.  Sumrall,  2  Peters,  182.  Per  Story, 
J.  Forster  v.  Fuller,  6  Mass.  Rep.  58.  Price  v.  Winston,  4  Munf.  63.  Allaire  v.  Ouland,  2  J. 
C.  52.     Stocking  v.  Sage,  1  Conn.  Rep.  519. 

(8)  Forbearance  to  sue,  generally,  is  a  sufficient  consideration  for  a  promise  to  pay  the 
debt  of  another,  if  in  fact,  there  be  "forbearance  for  a  long  time.  Elling  v.  Vanderlyn,  4  J. 
R.  237.  King  v.  Upton,  4  Greenl.  337.  See  Lemaster  v.  Burckhart,  2  Bibb,  25,  30.  An 
agreement  by  a  surety,  to  forbear  a  suit  against  his  principal,  when  his  cause  of  action  shoidd 
arise,  is  a  good  consideration  for  a  promise  of  indemnity  ;  although  at  the  time  of  the  agree- 
ment he  had  no  cause  of  action  against  the  principal.  Hamaker  v.  Eberley,  2  Binn.  506. 
An  agreement  by  the  payee  of  a  promissory  note  to  forbear  to  sue  the  maker,  for  one  year, 
is  a  sufficient  consideration  of  a  guaranty,  by  a  third  person,  of  the  payment  of  the  note. 
Sago  v.  Wilcox,  6  Conn.  Rep.  81. 

(9)  See  Hamaker  v.  Eberley,  2  Binn.  509. 

*ll 


Chap.  1.]  Of  a  Contract  and  Promise.  11 

ation  that  the  plaintiff  would  act  for  the  defendant  as  a  commissioner  to  exam- 
ine witnesses,  (l)  Or,  in  consideration  of  permission  to  do  an  act;  as,  to 
permit  a  wife  to  take  out  administration  durante  minori  estate  of  her  son  ; 
for  it  does  not  belong  to  her.  («)  Or,  in  consideration  of  leave  of  absence 
from  a  regiment  for  a  reasonable  time,  (oc) 

So,  in  consideration  of  any  other  act,  by  which  the  defendant  has  benefit  ; 
as,  in  consideration  that  the  plaintiff  would  deliver  to  the  defendant  certain 
goods,  in  which  the  plaintiff  had  only  a  special  property;  for  the  defendant  has 
a  benefit  by  the  present  possession,  (y)  Or,  in  consideration  of  the  release 
of  an  equity  of  redemption,  (z)  (10)  Or,  a  promise  in  consideration  of  the 
assignment  of  an  uncertain  debt,  (a)  Or,  to  accept  a  bill  in  consideration  of 
the  acceptance  of  another  of  equal  amount,  (b) 

So,  in  consideration  of  marriage  ;  as,  upon  a  communication  of  a  marriage,  a 
cousin  of  the  husband  promises  the  wife  to  give  her  100/.  if  the  husband's  father 
does  not  assure  such  land,  (c)  (11)  So,  a  discharge  of  a  promise  of  marriage 
by  a  woman  to  a  man  is  a  good  consideration,  (d)  So,  in  consideration  of  the 
voluntary  performance  of  an  act,  which  the  plaintiff  was  compellable  to  perform; 
as,  if  the  plaintiff  will  discharge  a  debt,  for  which  he  and  the  defendant  are  sure- 
ties, the  defendant  will  repay  the  moiety,  (e)  (12)  Or,  a  promise  to  cancel  a 
bond  in  consideration  that  the  obligee  will  pay  the  single  sum  due  upon  it.  (/) 
A  promise  for  *promise  is  a  good  consideration ;  as,  in  consideration  of  a  recip- 
rocal promise  of  marriage.  Thus,  in  the  case  of  Hebden  v.  Rutter,  (g)  the 
plaintiff  declared,  that  in  consideration  that  she  promised  to  marry  the  de- 
fendant, the  defendant  promised  to  marry  the  plaintiff;  and  averred  that 
the  plaintiff  requested  the  defendant  to  marry,  but  the  defendant  refused,  &c. 
To  this  declaration  the  defendant  demurred  :  and  it  was  said,  that  there  was  not 
any  consideration  ;  for  marriage  is  a  matter  merely  spiritual,  and  no  ground  for 
assumpsit  at  common  law.  Sed  per  curiam,  "  the  declaration  and  consideration 
in  this  case  are  good ;  for  marriage  is  a  preferment,  and  the  loss  of  it  is  a 
temporal  loss."  So,  where  one  Nichols  brought  an  action  of  Assumpsit  against 
Raynbred,  declaring  that  in  consideration,  that  Nichols  promised  to  deliver  to 
Raynbred  a  cow,  Raynbred  promised  to  deliver  him  50s.     This  was   adjudged 

(t)  Show.  342.  (b)  7  Term.  Rep.  569.  2  H.  Bl.  570. 

(«)  1  Rol.  Abr.  2t.  1.  30.  (c)  Cro.  El.  63,  4. 

(re)   1  Ld.  Raym.  312.  (d)  Sty.  295.  303. 

(y)  Cro.  El.  218.  (e)   1  Rol.  Abr.  20.  1.  50. 

(=)   1   Ld.  Raym.  662.  (/)  Cro.  Car.  8. 

(a)  2  Bl.  Rep.  820.  (g)  1  Sid.  180. 

(10)  See  Whitbeck  v.   Wliitbeck,  9  Co  wen,  266. 

(11)  So,  a  promise  by  a  father  to  his  son,  in  writing,  to  provide  for  him  on  his  marriage, 
by  the  gift  of  certain  negro  slaves  and  one  half  of  his  stock,  is  binding;  and  although  the 
father  did  not  perform  his  promise  in  his  lifetime,  and  made  other  dispositions  for  him  by 
his  will,  it  was  held,  that  the  son  was  entitled  to  recover  from  his  father's  executors. 
Caborne  v.  Godfrey,  3  Des.  514.  So,  a  promise  to  give  the  plaintiff  a  certain  quantity  of 
land  and  certain  articles  of  personal  property,  in  consideration  of  his  marrying  the  defend- 
ant's niece,  is  valid.     Barrv.  Hill,    Addis.  276. 

(12)  See  Huntington  v.  Todd,  3  Day,  465. 

*12 


12  Of  the  Nature  and  Parts  [Part  1. 

a  sufficient  consideration,  it  being  promise  for  promise.  (h)  (13)  But  it  is 
said,  (i)  that  mutual  promises  must  be  made  at  tbe  same  time,  otherwise  they 
will  be  nuda  pacta  (14). 

We  have  before  seen  (k)  that  a  consideration  of  some  sort  or  other  is  so 
absolutely  necessary  to  the  forming  of  a  contract,  that  a  nudum  pactum  or 
agreement  to  pay  any  thing  on  one  side,  without  any  compensation  on  the 
other,  is  actually  void  in  law,  and  a  man  cannot  legally  be  compelled  to  per- 
form it.  Therefore  if  a  man  gratuitously,  or  in  consideration  of  natural  affec- 
tion or  of  friendship,  promises  another  to  give  him  a  sum  of  money  on  a  day 
to  come,  this  is  nudum  pactum,  and  cannot  be  enforced  at  law  :  for  though  a 
gratuitous  undertaking,  seriously  made,  is  certainly  sufficient,  to  form  the  basis 
of  a  moral  and  honorary  obligation,  and  ought  not  to  be  receded  from  without 
some  adequate  reason,  yet,  a  person  making  such  a  promise  does  not  thereby 
intend  to  subject  himself  to  legal  responsibility ;  and  the  object  of  the  law  is 
rather  to  give  effect  to  contracts  founded  upon  the  mutual  exigencies  of  society, 
than  to  compel  the  execution  of  a  voluntary  engagement  or  mere  donation.  So, 
if  one  buy  goods  for  money,  and  no  money  be  paid,  nor  earnest  given,  nor  day 
set  for  payment,  nor  the  goods,  or  any  part  of  them,  delivered ;  here  no  action 
lies  for  the  money,  or  the  goods  sold,  but  the  owner  may  sell  them  to  another 
if  he  will;  there  being  no  consideration,  but  a  mere  agreement  to  buy.  (I) 
Again,  where  A.  having  proposed  to  sell  goods  to  B.  gave  him  a  certain  time 
at  his  request  to  determine  whether  he  would  buy  them  or  not ;  B.  within  the 
time  determined  to  buy  them,  and  gave  notice  thereof  to  A.  ;  yet  it  was  holden 
that  A.  was  not  liable  to  an  action  for  not  delivering  them  ;  for  B.  not  being 
bound  by  the  original  contract,  there  was  no  consideration  to  bind  A.  (m)  Or, 
where  a  carpenter  had  undertaken  to  build  a  house,  and  *for  the  not  doing  it, 
the  party  brought  an  action  against  the  carpenter,  but  because  it  did  not  appear 


(h)  Hob.  83.  See  also  Cro.  El.  545.  703.         (k)  Ante,  8. 
1  Wils.  88.  S.  P.  (0   Dy.  30.  a.     Shep.  Touch.  224. 

(i)  Hob.   88.  (m)  3  Term  Rep.  653. 


(13)  And  where  A.  and  B.,  v.- ho  were  competitors  for  the  bounty  or  premium  for  the 
best  manufactured  cloth,  agreed  that  the  successful  competitor  should  pay  one  half  of  the 
bounty  to  the  other  ;  the  promises  are  mutual,  and  one  is  a  consideration  for  the  other  ;  al- 
though there  was  a  condition  annexed  to  the  promise  of  on?  of  the  parties,  and  the  other 
was  unconditional.     Brigs  v.  TUlotson,  8  I.  R.  235.  (2d  Edit.) 

The  compromise  of  doubtful  and  conflicting  rights  and  claims,  and  the  settlement  of 
boundaries  is  not  only  a  good  and  sufficient  consideration  to  uphold  an  agreement,  but  is 
highly  favoured  inlaw.  Zane  v.  Zane,  6  Munf.  406.  Taylor  v.  Patrick,  1  Bibb.  168.  Fisher 
v.  May,  2  Bibb.  448. 

The  compromise  of  a  suit  is  also  a  good  consideration.  Kennedy  v.  Davis,  2  Bibb.  343. 
For  other  instances  of  mutual  promises,  see  Hancock  v.  Vaioter,  Hardin,  510.  Broivn  V. 
Lanzford,  3  Bibb.  497.     Fyke  v.   Thomas,  4  Bibb.   486. 

(14)  Mutual  promises  are  simultaneous;  and  they  must  be  so  alleged  in  pleading:  Thus, 
if  the  allegation  be,  that  in  consideration  of  the  plaintiff's  promise,  the  defendant,  after- 
wards, to  vil,  on  the  same  day,  promised,  it  is  bad,  and  the  promise  a  nudum  pactum  ;  although 
the  plaintiff's  promise  be  laid  to  have  been  made  at  the  request  of  the  defendant.  Livingston 
v.  Rogers,  1  Caines,  533.  See  Tucker  v.  Woods,  12  J.  R.  190.  Keep  v.  Goodrich,  12  J.  R. 
397. 

*13 


Chap.  1.]  Of  a  Contract  and  Promise.  13 

that  he  was  to  have  any  thing  for  building  the  house,  it  was  adjudged  that  the 
action  would  not  lie.(n)(15) 

So,  if  the  consideration  be  not  beneficial  to  the  party  promising,  nor  any  trou- 
ble or  prejudice  to  the  party  to  whom  the  promise  is  made,  it  is  not  good  :  as, 
if  a  promise  be  made  by  an  executor,  or  an  heir  at  law  who  has  no  assets,  in 
consideration  of  forbearance,  to  pay  the  debt  of  the  testator,  (o)  Or,  if  an  heir 
promise  in  consideration  of  the  forbearance  of  a  suit  in  Chancery,  to  which  he 
was  not  liable. (p)  So,  if  a  man  promise  payment  to  an  assignee,  in  consider- 
ation that  he  will  accept  him  for  his  debtor,  (q)  Or,  in  consideration  of  relin- 
quishing an  assumpsit,  which  was  void  (r)  ;  or,  in  consideration  of  a  discharge 
from  a  tortious  arrest.(s)  Again,  if  a  woman  after  the  death  of  her  husband 
promise,  in  consideration  that  the  plaintiff,  a  creditor  of  her  late  husband, 
will  permit  her  to  take  out  administration  to  her  husband,  she  will  pay 
him  his  debt,  this  is  not  a  valid  consideration  ;  for  the  administration 
belongs  to  the  wife,  (t)  So,  in  consideration  of  a  lease  at  will,  for  he  may 
determine  it  at  his  pleasure. («)( 16).  But  if  there  be  any  benefit,  labour,  or 
prejudice,  however  trifling,  it  is  deemed  a  sufficient  consideration  :  (17)  as  in 
the  case  of  Sir  Anthony  Sturlyn  v.  Albany, {x)  the  plaintiff  had  made  a  lease 
to  J.  S.  of  land  for  life  rendering  rent ;  J.  S.  granted  all  his  estate  to  the  defen- 
dant ;  the  rent  was  behind  for  several  years  ;  the  plaintiff  demanded  the  rent 
of  the  defendant,  who  promised,  that  if  the  plaintiff  could  show  to  him  a  deed 
that  the  rent  was  due,  he  would  pay  to  him  the  rent  and  arrearages  :  the  plain- 

(n)  PI.  Com.  309.  2  Ld.  Raym.  919.     5         (r)  1  Rol.  Abr.  26. 1.  10. 

Term  Rep.  143.  149.  (s)  Yelv.  25,  6. 

(o)  Mo.  732,  3.  (0  Mo.  685. 

(p)  Cro.  El.  206.  (w)   l  Ro1-  Abr-  23-  '•  37- 

(q)   1  Saund.  210.  (*)  Cro.  EI.  67.  150. 


(15)  Labor  and  services,  merely  gratuitous,  performed  by  the  plaintiff  for  the  defendant, 
without  his  request  or  privity,  however  meritorious  or  beneficial  they  may  be,  as  the  removal 
of  his  property  to  save  it  from  destruction  by  fire,  afford  no  cause  of  action.  Bartholomew 
v.  Jackson,  20  J.  R.  28.  And  so,  where  A.,  a  mere  trespasser,  entered  on  the  land  of  B. 
holding  adversely,  and  without  the  knowledge  or  assent  of  B.,  cleared  the  land  and  made 
valuable  improvements  thereon  ;  and  B.  afterwards,  (pending  an  ejectment  against  A.  for 
the  land)  agreed  with  A.,  by  parol,  that  he  would  either  sell  the  land  to  him,  as  wild 
land,  or  pay  him  for  the  improvements  he  had  made  ;  in  assumpsit  by  A.  against  B.  for  the 
value  of  the  improvements,  it  was  held,  that  the  assumption  of  B.  was  nudum  pactum,  on 
which  no  action  could  be  sustained.  Frear  v.  Hardenbergh,  5  J.  R.  272.  So,  a  promise 
by  A.  to  B.  that  B.  might  pass  and  repass  over  the  land  of  A.,  is  only  a  gratuitous  licence, 
and  revokable  at  pleasure  ;  and  if  A.,  afterwards,  fence  and  shut  up  the  land,  so  that 
B.  cannot  pass  and  repass,  no  action  will  lie.  Dexter  v.  Hazen,  10  J.  R.  246.  And  in 
Peabodie  v.  King,  12  J.  R.  426,  it  was  held,  that  part  payment  of  a  promissory  note,  by 
the  maker,  was  not  a  sufficient  consideration  to  support  a  promise  to  forbear  to  sue. 
See  Milley  v.  Holbrook,  1  Wend.  317.  So,  if  a  workman  be  employed  to  do  a  partic- 
ularjob,  and  he  choose  to  perform  some  additional  work,  without  consulting  his  em- 
ployer, he  cannot  recover  for  such  additional  work.  Hort  v.  Norton,  1  M'Cord,  22.  See 
further,  in  Phettyplace  v.  Steere,  2  J.  R.  442. 

(16)  Assumpsit  will  not  lie  for  the  nonperformance  of  a  promise  made  without  consid- 
eration, though  the  promisee  may  have  sustained  damage  on  account  of  the  non-feasance  : 
Thus,  where  A.  and  B.  were  joint  owners  of  a  vessel,  and  A.,  voluntarily  undertook  to  get 
her  ensured,  but  neglected  to  do  so,  and  the  vessel  was  lost;  it  was  adjudged,  that  B. 
could  maintain  no  action  against  A.  for  his  neglect.  Thome  v.  Deas,  4  J.  R.  84.  But  a 
factor,  or  commercial  agent,  who  is  entitled  to  a  commission,  would  be  liable  for  not  exe- 
cuting an  order  to  insure.     Id.  See  Randolph  v.  Ware,  3  Cranch,    503. 

(17)  See  dustyn  v.  M'Clure,  4  Dall.  226.     Stetvart  v.  Eden,  2  Caines,  150. 


13  Of  the  Nature  and  Parts  [Part  1. 

tiff  alleged  that  on  such  a  day,  &c.  he  showed  the  defendant  the  indenture 
of  lease  by  which  the  rent  was  due  ;  but  notwithstanding  this,  the  defendant 
refused  to  pay  the  rent  and  arrearages  due  for  four  years  ;  and  for  the  recovery 
thereof  the  action  was  brought.  A  motion  was  made  in  arrest  of  judgment, 
that  there  was  no  consideration  to  ground  an  assumpsit ;  for  the  mere  showing 
of  the  deed  is  no  consideration  in  law.  But  the  Court  gave  judgment  for  the 
plaintiff"  upon  this  ground,  that  when  a  thing  is  to  be  done  by  the  party  to 
whom  the  promise  is  made,  be  it  never  so  small,  this  is  a  sufficient  considera- 
tion to  support  an  action  ;  and  here  the  showing  of  the  deed  was  to  avoid  a 
suit. — The  reporter  makes  the  following  note  :  "  In  this  case  it  was  alleged, 
that  it  had  been  adjudged,  when  one  assumeth  to  another,  that  if  he  can  show 
him  an  obligation  in  which  he  was  bound  to  him,  that  he  would  pay  him,  and 
he  did  show  the  obligation,  &c.  that  no  action  lieth  upon  *this  assumpsit ; 
which  was  affirmed  by  the  justices."  And  in  Foster  v.  Scarlett,  (y)  the  plain- 
tiff declared,  that  whereas  he  and  one  Willington  submitted  themselves  to  the 
arbitrament  of  A.  and  B.  of  all  matters,  &c.  ;  that  A.  and  B.  awarded  the 
plaintiff  should  release  to  Willington  all  debts  which  he  owed  him ;  and  that 
Willington  should  assure  to  the  plaintiff  certain  lands  which  he  held  for  life, 
the  reversion  to  the  plaintiff ;  and  that  the  defendant  and  one  Putter,  who  pre- 
tended to  have  a  lease  of  the  lands,  should  seal  a  deed  to  the  plaintiff,  that 
they  should  assure  to  the  plaintiff  their  lease  and  interest  in  the  said  lands  ; 
that  after  the  arbitrament,  in  consideration  that  the  plaintiff  did  assume  to 
Willington  to  stand  to  and  perform  the  arbitrament,  the  defendant  did  assume, 
that  he  and  Putter,  upon  a  request  made  to  them,  would  convey  the  said  land  to  the 
plaintiff:  the  plaintiff  averred  that  he  had  performed  the  award  on  his  part,  and 
had  requested  the  defendant  that  he  and  Putter  would  convey  the  land,  &c.  which 
they  had  not  done. — It  was  moved  in  arrest  of  judgment  that  there  was  no 
consideration  to  bind  the  defendant,  for  he  took  no  benefit  thereby.  But  the 
Court  held  clearly  the  contrary,  that  it  was  a  good  consideration  ;  for  by  rea- 
son of  the  promise  the  plaintiff  was  drawn  to  make  the  release  ;  and  it  is  not 
material  that  the  defendant  took  no  benefit  by  the  release.  So,  the  common 
law,  in  some  cases,  considers  the  mere  entrusting  a  thing  with  another,  and  his 
undertaking  the  care  of  it,  a  sufficient  consideration  for  his  faithful  discharge 
of  the  trust.  And  therefore,  though  a  I  person  who  gratuitously  engages  to 
do  an  act  for  another,  is  not  liable  in  law  to  an  action  for  not  doing  it ;  yet  if 
goods  are  delivered  to  him,  and  he  undertakes  to  carry  them,  or  do  something 
about  them  without  any  reward,  an  action  of  assumpsit  will  lie  on  this  bail- 
ment, if  there  be  any  neglect  on  the  part  of  the  bailee  by  which  the  goods  are 
spoiled.  (18) 

(y)  Cro.  EI.  70. 

(18)  Where  A.  received  of  B.  a  bill  of  exchange  drawn  by  C,  and  which  he  promised  to 
return  to  B.,  on  demand,  or  pay  the  amount  ;  though  the  bill  was  received  by  A.  as  a  mat- 
ter ofcourtesv,  and  was  to  be  used  for  the  benefit  ofB. ;  yet,  as  A.  did  not  return  the 

*14 


Chap.  1.]  Of  a  Contract  and  Promise.  14 

This  was  one  of  the  points   settled   in  the   case   of  Coggs  v.  Bernard,  (z) 

which  was  an  action  of  assumpsit,  wherein  the  plaintifT  declared,  that,  whereas 

the  defendant  undertook  safely  and    securely   to  take  up   several  hogsheads  of 

brandy,  then  in  a  certain    cellar  in  D.  and  safely    and    securely  to    lay  them 

down  again  in  a  certain  other  cellar  in  W.,  but  that  the  said  defendant  and  his 

servants  so    negligently  and  improvidently  put  them  down   again  into  the  said 

other  cellar,  that  for  want  of  care  in  the  defendant  and  his  servants,  one  of  the 

casks  was  staved,  and  a  great  quantity  of  brandy  was   lost.     A   motion  was 

made  in  arrest  of  judgment,  because  it  was  not  alleged  in  the  declaration  that 

the  defendant  was  a  common  porter,  nor  averred  that  he  had  any  thing  for  his 

pains.     But  to   the  second  objection,  "  that    there  was   no   consideration  to 

ground   the   promise,   and   that  the  undertaking  was   nudum  pactum,''''  Holt, 

Chief  Justice,  and  the  rest  of  the   court,    answered,  that  the  owner's  trusting 

*the  defendant  with  the  goods,  was  a  sufficient  consideration  to  oblige  him  to 

a  careful  management.     Indeed,  if  the  agreement  had  been  executory,  to  carry 

these    brandies  from  one  place  to  the  other  such   a  day,  the  defendant  had 

not  been  bound  to  carry  them  ;  but  this  was  a   different  case  ;  for  assumpsit 

did  not  only  signify  a  future  agreement,  but  in  such  a  case  as  this,  it  signifies 

an  actual  entry  upon  the  thing,  and  taking  the   trust  upon  himself.     And  if 

a  man  will  do  that,  and  miscarries  in  the  performance  of  his  trust,   an  action 

will  lie  against  him  for  that,  though  nobody  could  have   compelled  him  to  do 

the  thing.     And  upon  the  same  principle,  it  was  holden,(a)  that  if  a  carpenter 

undertakes  to  build  or  repair  a  house,   and  he  does  it  unskilfully,  an  action  on 

the  case  will  lie  against  him  for  his  misfeazance,  though  no  consideration  be 

alleged. 

6.  OF  PROMISES  UPON  A  CONSIDERATION  PREVIOUSLY  EXECUTED. 

If  the  consideration  is  wholly  past  and  executed,  it  will  not  support  a  subse- 
quent promise,  unless  the  consideration  was  executed  either  at  the  express  or 
implied  request  of  the  party  promising.  For  it  is  not  reasonable  that  one  man 
should  do  another  a  kindness,  and  then  charge  him  with  a  recompense ;  as  it 
would  be  obliging  him  whether  he  would  or  not,  and  bringing  him  under  an 
obligation  without  his  concurrence.  This  was  determined  in  the  case  of  Hunt 
v.  Bate  ;  (ft)  the  servant  of  a  man  was  arrested  and  imprisoned  in  the  Compter 
in  London  for  a  trespass  ;  and  he  was  let  to  mainprize  by  the  manucaption  of 
two  citizens  of  London  (who  were  well  acquainted  with  the  master),  in  consid- 
eration that  the  business  of  the  master  should  not  go  undone.  And  afterwards, 
before  judgment  and  condemnation,  the  master,  upon  the  said  friendly  consid- 

(z)  2  Lord  Raym.  909.  149. 

(o)  2  Ld.  Raym.   919,  920.     5  Term  Rep.         (ft)  Dy.  272.  a. 


bill  on  demand,  nor  in  due  season,  and  as  B.  had  suffered  special  damage  by  the  nealect,  A. 
was  held,  under  the  circumstances  of  the  case,  liable  to  B.  for  the  amount.  Rutgers  v.  Lu- 
cet,  2  J.  C.  92.     See  Stephens  v.  White,  2  Wash.  203,  211.     1  Swift's  Dig.  208,  209. 

*15 


15  Of  the  Nature  and  Parts  [Part  1. 

eration,  promised  and  undertook  to  one  of  the  mainpernors  to  save  him  harm- 
less against  the  party  plaintiff,  from  all  damages  and  costs,  if  any  should  be  ad- 
judged, as  happened  afterwards  in  reality ;  after  this  the  surety  was  compelled 
to  pay  the  condemnation,  amounting  to  thirty-one  pounds,  &c.  And  thereupon 
he  brought  an  action  on  the  case,  and  the  undertaking  was  traversed  by  the  mas- 
ter, and  found  in  London  at  nisi  priiis  against  him.  But  it  was  afterwards 
moved  in  arrest  of  judgment,  that  the  action  did  not  lie.  And  by  the  opinion 
of  the  Court,  "  the  action  does  not  lie  in  this  matter,  because  there  is  no  con- 
sideration wherefore  the  defendant  should  be  charged  for  the  debt  of  his  ser- 
vant, unless  the  master  had  first  promised  to  discharge  the  plaintiff  before  the 
enlargement,  and  mainprize  made  of  his  servant,  for  the  master  did  never  make 
request  to  the  plaintiff  for  his  servant  *to  do  so  much,  but  he  did  it  of  his  own 
head."  Wherefore  judgment  was  given  for  the  defendant.  But,  in  the  same 
report,  it  is  added,  that  in  another  like  action  brought  upon  a  promise  of  twenty 
pounds  made  to  the  plaintiff  by  the  defendant,  in  consideration  that  the  plaintiff, 
at  the  special  instance  of  the  said  defendant,  had  taken  to  wife  the  cousin  of 
the  defendant ;  it  was  holden  that  this  was  a  good  consideration,  although  the 
marriage  was  executed  and  past  before  the  undertaking  and  promise,  because 
the  marriage  ensued  the  request  of  the  defendant. 

And,  in  an  action  on  the  case,  (c)  in  consideration  that  the  plaintiff,  at  the 
request  of  the  defendant,  had  taken  such  a  one  apprentice,  the  defendant  under- 
took that  he  should  serve  truly,  &c,  it  was  adjudged  that  this  was  a  good  con- 
sideration, although  it  were  passed,  because  it  was  at  the  request  of  the  defen- 
dant. So,  in  consideration  of  one  hundred  and  ten  pounds  given  to  a  stranger, 
{d)  at  the  instance  of  the  defendant,  the  defendant  undertook  ;  and  adjudged  a 
good  consideration,  although  it  was  passed,  because  it  was  at  the  instance  of  the 
defendant.  And  the  distinction  taken  in  these  cases  was  agreed  to  by  all  the 
Justices  in  Sidenham  and  Worlington's  case,  (e)  which  was  an  action  of 
assumpsit,  wherein  the  plaintiff  declared,  that  he,  at  the  request  of  the  defen- 
dant, was  surety  and  bail  for  J.  S.,  who  was  arrested  into  the  King's  Bench 
upon  an  action  of  30/.,  and  that  afterwards  for  the  default  of  J.  S.  he  was  con- 
strained to  pay  the  30/. ;  after  which,  the  defendant,  meeting  with  the  plaintiff', 
promised  him,  for  the  same  consideration,  that  he  would  repay  that  30/.,  but 
which  he  afterwards  refused  ;  and  for  the  recovery  thereof  the  action  was 
brought.  It  was  objected  that  this  consideration  could  not  maintain  the  action, 
because  the  consideration  and  promise  did  not  concur  and  go  together.  Ander- 
son, Ch.  J.  said,  "This  action  will  not  lie  ;  for  it  is  but  a  bare  agreement,  and 
nudum  pactum,  because  the  contract  was  determined,  and  not  in  esse  at  the 
time  of  the  promise  ;  but  he  said,  it  is  otherwise  upon  a  consideration  of  mar- 
riage, for  marriage  is  always  a  present  consideration."  Windham  agreed  with 
Anderson,  and  he  put  the  case  in  3  H.  7.     If  one   selleth  a  horse  unto  another, 

(c)  Hil.  36.     Eliz. //arris's  case.     Dy.272.     a.  n.  31. 
a.  n.  31.  («)  2  Leon.  224. 

(d)  East.  38.    Eliz.  Foster's  case.   Dy.  272. 

*16 


Chap,  1.]  Of  a  Contract  and  Promise.  15 

and  at  another  day  he  will  warrant  him  to  be  sound  of  limb  and  member,  it  is  a 
void  warranty  ;  for  that  such  warranty  ought  to  have  been  made  or  given  at  such 
time  as  the  horse  was  sold  :  Periam,  Justice,  conceived  that  the  action  did  well 
lie,  and  he  said,    "  This   case  is  not  like   unto  the  cases  which  have  been  put 
on  the  other  side,  for  there  is  a  great  difference  betwixt  contracts  and  this  case  ; 
for  in  contracts  upon  sale,  the  consideration,  the    promise,   and  the    sale   ought 
to  meet  together  ;  for  a  contract  is  derived   from   con   and   trahere,  which  is  a 
drawing  together,  so  that  in  contracts   every   thing   whieh  is  requisite  ought  to 
*concur    and  meet  together,   viz.  the    consideration   on  the  one   side,  and  the 
sale  or  promise  on  the  other  side.     But  to  maintain  an  action  upon  an  assumpsit 
the  same  is  not  requisite  ;  for  it  is  sufficient  if  there  be  a  moving  cause  or  con- 
sideration precedent,  for  which  cause  or  consideration   the  promise  was   made  ; 
and  such  is  the  common  practice  at  this  day ;  for  in  an  action  on  the  case  upon 
a  promise,  the  declaration  is  laid  that  the  defendant  for  and  in  consideration  of 
20/.  to  him  paid,  afterwards,  that  is  to  say,  at  a  day   after,   super  se  assumpsit, 
and  that  is  good,  and  yet  there  the  consideration  is  laid  to   be  executed.     And 
he  said  that  the  case  of  Hunt  v.   Bate,    would  prove   the  present   case  ;  for  in 
that  case  it  was  adjudged  that  the  action  would  not  lie,  because  the  consider- 
ation was  precedent  to  the  promise,  and  because  it  was  executed  and   determin- 
ed long  before.     But  it  was  holden  by  all  the  Justices,   that  if  Hunt  had  re- 
quested Bate  to  have  been  surety  or  bail,  and  afterwards.  Hunt  had  made  the 
promise  upon  that  consideration,  the  same  had  been  good  ;  for  that  the   consid- 
eration did  precede,  and  was  at  the  instance  and  request  of  the   defendant." — 
Rhodes,  Justice,  agreed  with  Periam,  and  he  said,  "  That  if  one  serve  me   for 
a  year,  and  hath  nothing  for  his  service,  and  afterwards,  at  the  end  of  the  year, 
I  promise  him  20/.  for  his  good  and  faithful  service  ended,   he  may  have  and 
maintain  an  action  upon  the  promise  ;  for  it  is  made  upon  a  good  consideration : 
but  if   a  servant   hath  wages  given   him,   and  his   master,  ex  abundanti,   doth 
promise  him  10/.  after  his  service  ended,  he  shall  not  maintain  an  action  for  the 
10/.,  because  there  is  not  any  new  cause  or  consideration  preceding  the  promise ; 
which  difference  was  agreed  by   all  the  Justices  :   and   afterwards,   upon   good 
and  long  advice   and  consideration   had   of  the   principal   case,  judgment  was 
given  for  the   plaintiff;  and  they  much  relied  upon  the  case  of  Hunt  and  Bate. 
And  in  the  case  of  Tounsend  v.  Hunt,  (f)  where   the  plaintiff,  at  the  request 
of  the  defendant,  had  made  a  general  release  to  him  and  his  wife  (she  being  ex- 
ecutrix of  F.  T.  under  whose  will  the  plaintiff  claimed  a  legacy  of  60/.,  53/.  of 
which  he  had  been  paid,  and  had  afterwards  executed  the  release  in  question), 
the  defendant  in  consideration  thereof  promised  the  plaintiff,  that  if  his  wife 
did  not  pay  the  seven  pounds,  residue' of  the  legacy  in  her  life-time,  he  would 
pay  it  after  his  wife's  death  :  It  was  also  holden,  that  though  the  promise  was 
made  after  the  release,  yet,  forasmuch  as  the  release  was  made  at  the  defend- 
ant's request,  and  the  defendant  had  the  benefit  of  it,  the  promise  upon  this 
consideration  was  good  enough.     So,  also,  in  the  case  of  Bosden  v.   Sir  John 


(/)  Cio.  Car.  408. 

*16 


17  Of  the  Nature  mid  Parts  [Part  I. 

Thinn,  (g)  where  the  plaintiff  declared,  that  whereas  the  defendant  requested 
the  plaintiff  to  give  his  credit  for  two  tuns  of  wine  for  one  Roberts,  to  one 
Fludd,  amounting  to  50/.  ;  he  thereupon  *gave  his  bond  of  100/.  for  the  pay- 
ment of  the  50/.,  and  for  the  non-payment  thereof  was  sued,  and  enforced  to 
pay  70/.  ;  and  showing  this  to  the  defendant,  he,  in  consideration  of  the  premises, 
assumed  to  the  plaintiff  to  pay  the  70/.,  &c. — It  was  moved,  that  this  promise 
was  not  sufficient,  it  being  upon  a  consideration  past.  But  the  Court  held, 
that  the  consideration  and  promise  were  valid  ;  because  Roberts,  upon  the 
plaintiffs  undertaking  at  the  defendant's  request,  had  credit  given  him  by  Fludd  ; 
and  the  plaintiff  was  damnified  by  reason  thereof,  which  in  conscience  the 
defendant  ought  to  satisfy.(19) 

Where  a  party  has  derived  a  benefit  from  a  past  consideration,  the  law,  in 
some  instances,  will  raise  an  implied  request ;  as  where  a  man  pays  a  sum  of 
money,  or  buys  any  goods  for  me  without  my  knowledge  or  request,  and  after- 
wards I  agree  to  the  payment,  or  receive  the  goods,  this  is  equivalent  to  a  pre- 
vious request. (//)  So,  in  consideration  that  the  plaintiff  had  buried  the  defend- 
ant's son  or  wife,  during  the  absence  or  separation  of  the  father  or  husband  ; 
this  is  good  without  any  previous  request.(i)  (20) 

7,  OF  PROMISES  MADE  UPON  A  CONSIDERATION  EXECUTED  IN 

PART  AND  CONTINUING. 

If  a  consideration  be  executed  in  part  only,  and  is  continuing,  it  will  support 
a  subsequent  promise.  This  was  settled  in  the  case  of  Pearlc  v.  linger,  (k) 
which  was  an  action  of  assumpsit,  wherein  the  plaintiff  declared,  that  he  was 
possessed  of  certain  lands  for  years,  the  defendant,  in  consideration  he  had 
occupied  the  land,  and  had  paid  the  rent  to  the  defendant,  viz.  30/. per  annum, 
all  the  time  he  had  occupied  it,  assumed  to  save  him  harmless  for  the  occupa- 
tion of  the  land  always  during  the  term,  as  well  for  the  years  past  as  to  come ; 
and  alleged  that  before  the  time  of  the  promise,  viz.  such  a  day,  &c.  his  beasts 
were  taken  damage  feasant,  &c,  and  that  the  defendant  had  not  saved  him 
harmless  of  it.  It  was  moved  in  arrest  of  judgment,  that  there  was  no  con- 
sideration to  maintain  the  action  ;  for  the  consideration  and  cause  of  the  prom- 

(g)  Cro.  Jac.  18.     Yelv.  40.  (i)  T.  Raym.  260.  Dy.  272.  a.  n.  b. 

(h)  See  1  Saund.  2G4.  n.  1.  (fc)  Cro.  El.  94. 


(19)  The  principles  upon  which  the  cases  mentioned  in  the  text  were  determined,  have 
been  sustained  by  judicial  decisions  on  the  same  subject  in  the  United  States.  Comstock  v. 
Smith,  7  J.  II.  87.  Chaffee  v.  Thomas,  7  Cowcn,  358.  See  Swifts1  Die.  203,  204.  Hicks  v. 
Burhans,  10  J.  R.  243.  Livingston  v.  Rogers,  1  Caines,  583.  Doty  v.  Wilson,  14  J.  R.  378. 
Greaves  v.  J\P.Mister,  1  Brown,  111,  S.  C.  2  Binn.  591.  Massey  v.  Craine,  1  M'Cord,  489. 
Garrett  v.  Stuart,  Id.  514. 

(20)  See  Oatfield  v.  Waring,  14  J.  R.  188.  It  seems  to  be  well  settled,  that  a  promise  to 
pay,  founded  on  a  past  consideration,  is  valid,  if  the  past  services  are  alleged  to  have  been 
done  on  request ;  and  if  not  so  alleged,  a  request  may  be  presumed  from  the  beneficial 
nature  of  the  consideration,  and  the  circumstances  of  the  case.  Hicks  v.  Burhans,  10  J.  R. 
243.  See  also,  James  v.  Bixby,  11  Mass.  Rep.  37.  Per  Parker,  J.  Livingston  v.  Rogers, 
ICaines,  581.     Per  Kent,  J.     1  Swifts'  Dig.  203. 

*18 


Chap.  I.]  Of  a  Contract  cm d  Promise.  18 

ise  was  a  thing  done   before,  viz.   the  occupation  and  payment  of  the  rent ; 
which  being,  past,  are  no  considerations  for  a  thing  future  to  be  done. — But  it 
was  adjudged  for  the  plaintiff;  for  the  consideration,  that  he  was  in  possession* 
and  had  paid  his  rent,  and  was  to  pay  his  rent,  is  sufficient  to  cause  the  other 
to  defend  his  possession  for  the  time  past  and   to   come.     So,  where  one  being 
possessed  of  a  shop  (I)    agreed  to  demise  it   to  another,  paying  to  him  40.?.  by 
the  year,  and  10s.  for  the  last  quarter  ;  and  for  the   perfecting  the   agreement 
each  gave  the  other  Is.,  *and  afterwards,  in  consideration  of  the  premises,  the 
lessee  promised  to  give  the  lessor  30Z.,  and  assumed  to  pay  it ;  in  consideration 
whereof,  and  in  performance  of  the   contract,  the  lessor  made  a  lease  to  the 
lessee  accordingly;  and  the  action  was  brought  for  the  301. — It  was  objected, 
that  there  was  no  good  consideration  expressed  to  raise  the  promise  for  the  30/., 
the  same  being  grounded  upon  a  consideration  that  was  past,  perfect,  and  exe- 
cuted, and   so  no  good  consideration.     Sed  per  curiam.     The  lease   here  is 
made  after  the  promise ;  the   agreement  is  in  performance  of  all,  not  of  part ; 
it  was  on  the  lessor's   part  to  make  the  lease  to  the   defendant,  and  on  his  part 
to  pay  the  rent  of  AOs.  ;  and  the  30/.  in  consideration  of  his  quietly  enjoying 
the  same,  which  is  a  valid  promise,  founded  upon  a  good  and  sufficient  consider- 
ation.    And,  in  the  case  of  Warcop  v.  Morse,  (m)  where  the  plaintiff  declared, 
that  in  consideration  he  had  bought  of  the  defendant  three  parcels  of  land  on 
such  a  day,  the  defendant  afterwards  on  another  day,  promised  to  make  him  a 
sufficient  assurance.     It  was  adjudged  that  the  consideration  was  not  absolutely 
past,  for  the  assurance  was  the  substance  of  the  sale.     So,  a  promise  on  a    con- 
sideration executed  is  good,  if  there  were  a  duty  before  ;  as,  where  the  plaintiff 
declared  that  on   such  a  day,  the  defendant  was  indebted  to  him  in  a  certain 
sum,  for  divers  goods  sold  to  him  ;  and  for  money  lent ;  and  also  for  money  due 
upon  an  account  stated  ;  and  being  so  indebted,  the  defendant   in  consideration 
thereof  afterwards,  on  such  a  day  promised  to  pay,   &c.     It  was   holden,  that 
this  is  a  good   consideration  to  raise  an  assumpsit ;  for  the   continuance  of  the 
debt  is  a  consideration  continuing  and  sufficient  to  support  an  action,  (n) 

8.  OF  A  PROMISE  TO  PAY  A  PRECEDENT  DEBT  BARRED  BY 

STATUTE,  &c. 

Where  a  man  is  under  a  moral  obligation,  which  no  court  of  law  or  equity 
can  enforce,  and  proinises,  the  honesty  and  rectitude  of  the  thing  is  a  valid 
consideration :  As,  if  a  man  promise  to  pay  a  just  debt,  the  recovery  of  which 
is  barred  by  the  statute  of  limitations  ;  (o)  (21)  or,  if  a   man  after  he  comes  of 


(I)  Jones  v.   Clark,  2  Bulst.  73.  son\.  Aslell,  1  Lev.  198.     Mo.  854. 

(m)  Cro.  El.  138.  (o)  1  Ld.  Raym.  389. 

(rt)  Hodge  v.  Vavisor,  1  Rol.  Rep.  413.  John- 


(21)  The  authorities  on  this  subject  are  very  numerous  ;  and  no  principle  is  more  firmly 
established  than  the  one  laid  down  in  the  text.     The  principal  source  of  litigation,  in  thesa 

*19 


19  Of  the  Nature  and  Parts  [Part  1. 

acre,  (n)  promises  to  pay  a  meritorious  debt  contracted  during  his  minority,  but 
not  for  necessaries  ;  (22)  or  if  a  bankrupt,  in  affluent  circumstances  after  his 
certificate,  promises  to  pay  the  whole  of  his  debts  ;  (q)  (23)  or  if  a  man  pro- 
mise to  perform  a  secret  trust,  or  a  trust  void  for  want  of  writing  by  the  stat- 
ute of  frauds,  (r)  In  these,  and  in  many  other  instances,  though  the  promise 
gives  a  compulsory  remedy  where  there  was  none  before  either  in  law  or 
equity,  yet  as  the  promise  is  *only  to  do  what  an  honest  man  ought  to  do,  the 
ties  of  conscience  upon  an  upright  man  are  a  sufficient  consideration. (s)  (24) 


(p)  Stra.  690.  1  Term  Rep.  648.  (s)  Per  Lord  .Mansfield,  Cowp..  290.  See 

(q)  Cowp.  544.  Doug.  101.  n.  also  2  Bl.  Com.  445.  and  5  Taun.  Rep.  47. 

(>•)  Cowp.  290. 


cases,  arises  on  the  question  as  to  the  sufficiency  or  insufficiency  of  the  evidence  ;  or  in 
other  words,  what  acts  or  declarations  of  the  party  are  sufficient  to  revive  the  original 
cause  of  action.  Under  this  head,  a  reference  to  some  of  the  principal  cases,  will  be  suffi- 
cient for  all  practical  purposes.  Danforth  v.  Culver,  11  J.  R.  146.  Sluby  v.  Champlin,  A 
J.  R.  460.  and  note  (b)  469.  Dean  v.  Pitts,  10  J.  R.  35.  Furgerson  v.  Taylor,  1  Hayw.  20. 
Fergusons.  Fitt,\A.  239.  Sands  v.  Gelston,  15  J.  R.  511.  Mosher  v.  Hubbard,  13  J.  R. 
510?  Baxter  v.  Penniman,  8  Mass.  Rep.  133.  Fiske  v.  Needham,  11  Mass.  Rep.  452. 
Guier  v.  Pcarce,  2  Browne,  35.  MUes  v.  Moudie,  3  Serg.  Sc  R.  211.  Smith  v.  Freel,  Addis. 
291.  Brown  v.  Campbell,  1  Serg.  &  R.  176.  Jones  v.  Moore,  5  Binn.  573.  Beall  v.  Ed- 
mondson,  3  Call,  41G.  Marshall  v.  Dalliber,  5  Conn.  Rep.  480.  Beitz  v.  Fuller,  1  M'Cord, 
541.  Lee\.  Perry,  3 M'Cord,  552.  King  v.  Riddle,  7  Cranch,  168.  Clementscn  v.  Wil- 
liams, 8  Cranch,  72.  Kane  v.  Bloodgood,  7  Johns.  Ch.  Rep.  90.  Robins  v.  Otis,  1  Pick. 
368.  Wetzellv.  Bussard,  11  Wheat.  309.  Thompson  v.  Peter,  12  Wheat.  56a.  Bell  v. 
Morrison,  I    Peters,  351,  362.  Bell  v.  Rowland,  Hardin,  301. 

But  if  the  promise  to  pay  a  debt  barred  by  the  statute,  be  conditional,  the  remedy  will 
not  be  revived,  unless  the  condition  be  performed,  or  a  readiness  to  perform  it,  be  shown. 
Read  v.  Wilkinson,  M.  S.  Rep.  C.  C.  April  1811.  Whart.  Dig.  425.  S.  C.  2.  Browne,  Appx. 
16.  Bell  v.  Morrison ;  Wetzellv.  Bussard;  and  Robbins  v.  Otis,  ut  supra.  See  Scouton  v. 
Eislord,  7  J.  R.  3G.  Kingston  v.  Wharton,  2  Serg.  &  R.  208.  Bush  v.  Barnard,  S  J.  R. 
318.  2d  edit.  An  acknowledgment,  by  one  partner,  after  a  dissolution  of  the  partnership, 
of  a  company  debt  barred  by  "the  statute,  will  revive  it  against  all  the  partners.  Smith  v. 
Ludlow,  6  J.  R.  267.  But  see  contra,  Bell  v.  Morrison,  1  Peters,  351,  370,  373.  So,  a  pro- 
mise by  one  joint  debtor,  to  pay  a  debt  barred  by  the  statute  of  limitations,  will  take  the 
case  out  of  the  statute.     Johnson  v.  Beardslee,  15  J .  R.  3.     Beitz  v.  Fuller,  1  M'Cord,   541. 

(22)  See  ford  v.  Phillips,  ]  Pick.  202.     Barnabyx.  Barnaby,  1  Pick.  221. 

(23)  See  Scouton  v.  Eislord,  7  J.  R.  36.  Shippey  v.  Henderson,  14  J.  It.  178.  Maxim  v. 
Morse,  8  Mass.  Rep.  127.  Erwin  v.  Saunders,  1  Cowen,  249.  Kingston  v.  Wharton,  2  Serg. 
&  R.  208. 

(24)  In  conformity  to  this  principle,  it  has  frequently  been  decided,  that  an  equitable  or 
moral  obligation  is  a  sufficient  consideration  to  support  an  express  promise  :  Thus,  an  ex- 
ecutor, having  assets  in  his  hands,  may  be  charged  de  bonis  propriis,  on  a  promise  to  pay  a 
leszacv  giveD  by  the  will  of  the  testator.  Clark  v.  Herring,  5  Binn.  33.  So,  where  a  deputy 
sheriff,  voluntarily,  suffered  a  prisoner  in  custody  on  a  ca.  sa.,  to  escape,  and  the  sheriff 
having  been  compelled,  by  legal  process,  to  pay  the  amount  of  the  debt  to  the  execution 
creditor,  promised  the  sheriff  to  pay  the  same  to  him  ;  it  was  held,  that  such  promise 
would  support  assumpsit  for  the  money  so  paid  ;  there  being  a  moral  obligation  irsting  on 
the  defendant,  accompanied  by  an  express  assumption.  Doty  v.  Wilson,  14  J.  R.  378.  So, 
if  a  person,  for  whose  benefit  a  note  has  been  made,  but  who  is  not  a  party  to  it,  promise 
to  pay  the  amount  to  the  holder,  the  prior  equitable  obligation  is  a  good  consideration  to 
support  the  assumption.  Stewart  v.  Eden,  2Caines,  150.  And  so,  where  money  has  been 
paid,  and  a  receipt  taken,  and  afterwards  the  creditor  brought  an  action  for  the  same  mo- 
ney, and  recovered,  by  reason  of  the  omission  of  the  defendant  to  produce  the  receipt  in  his 
defence  :  a  subsequent  promise  to  refund  the  money,  was  held  to  be  valid  ;  the  moral  ob- 
ligation to  repay,  being  a  sufficient  consideration.  Bint  ley  v.  Morse,  14  J.  R.  468.  An  assign- 
ment of  a  chose  in  action,  with  notice  to  the  debtor,  imposes'  on  him  an  equitable  and  moral 
obligation  to  pay  the  money  to  the  assignee  and  although  such  obligation  may  not  he  suffi- 
cient to  support  an  implied  assumpsit,  so  as  to  enable  the  assignee  to  sue  in  his  own  name ; 
yet  it  is  a  good  consideration  for  an  express  promise,  upon  which,  an  action  in  his  own 
name  may  be  maintained.     Crocker  v.    Whitney,  10  Mass.   Rep.  316.     Mowry  v.  Todd,   12 

*20 


Chap.  1.]  Of  a  Contract  and  Promise.  20 

A  subsequent  promise,  however,  will  revive  that  which  is  voidable  only  ;  there- 
fore where  the  consideration  is  void  in  its  creation,  no  promise  can  set  it  up 
again :  As,  if  all  the  creditors  of  an  insolvent  consent  to  accept  a  composition 
for  their  demands,  on  an  assignment  of  his  effects  by  a  deed  of  trust,  to  which 
they  are  all  parties,  and  one  of  them,  before  he  executes,  obtain  from  the  in- 
solvent a  promissory  note  for  the  residue  of  his  demand,  as  the  condition  of 
his  executing  the  deed,  the  note  is  void  in  law,  as  a  fraud  on  the  rest  of  the 
creditors  ;  and  a  subsequent  promise  to  pay  it  is  a  promise  without  considera- 
tion, and  will  not  maintain  an  action.(0 

9.  OF  A  CONSIDERATION  VOID  IN  PART. 

If  a  contract  or  agreement  be  made  upon  two  considerations,  and  one  of  them 
cannot  be  performed,  this  will  not  avoid  the  contract ;  and  in  an  action  thereon, 
the  damages  shall  be  intended  to  be  wholly  given  for  the  good  consideration,  (u) 
As,  in  consideration  of  the  assignment  of  a  title  to  dower,  and  the  not  suing 
an  attachment  out  of  chancery  upon  a  decree  ;  though  a  title  to  dower  can- 
not be  assigned,  but  released  to  the  terre-tenant,  (v)  So,  in  consideration 
of  a  permission  to  remove  goods,  and  relinquish  a  foreign  attachment,  though 
it  cannot  be  relinquished,  (w)     Or,  in  consideration  of  two  things ;  and  one 


(0    Cockshott    v.   Bennett,   2    Term  Rep.     Leon.  3. 
763.  (»)Cro.  El.  847. 

(u)   Cro.   El.    149.      1  Sid.  33.  contra.  4         (u<)  Yelv.  56. 


Mass.  Rep.  281.     As  to  the  sufficiency  of  a  moral  obligation,  accompanied  by  a  subsequent 


1  Swift's  Dig.  204,  205.  Comstock  v.  Smith,  7  J.  R.  89.  note  (c).  The  broad  foundation 
upon  which  these  authorities  rest,  has,  by  some  recent  decisions,  been  very  much  narrowed. 
In  Mills  v.  Wyman,  3  Pick.  207  ;  where  a  son,  who  was  of  full  age,  and  had  ceased  to  be 
a  member  of  his  father's  family,  was  suddenly  taken  sick,  among  strangers,  and  being  poor 
and  in  distress,  was  relieved  by  the  plaintiff;  and  afterwards,  the  father  wrote  to  the  plain- 
tiff, promising  to  pay  him  the  expences  incurred  ;  it  was  held,  that  such  promise  would  not 
sustain  an  action.  And  in  a  similar,  and  still  later  case,  the  same  principle  is  fully  recog- 
nized :  A.  had  furnished  necessaries  to  B.,  who  was  indigent,  and  needed  relief;  and  C.  his 
son,  who  was  of  sufficient  ability,  signed  and  delivered  to  A.,  a  writing  in  these  words  ; 
"  This  may  certify,  that  the  debt  now  due  from  my  father  B.  to  A.,  I  acknowledge  to  be 
for  necessaries  of  life,  and  of  such  a  nature,  that  I  consider  myself  hereby  obliged  to  pay 
A.  60  dollars  towards  said  debt  now  due  ;  provided  my  father  does  not  settle  with  A.  in  his 
life  time  ;" — This  contract  was  held  to  be  void  for  want  of  consideration.  Cook  v.  Bradley, 
7  Conn.  Rep.  57.  From  a  view  of  these  cases,  it  seems,  that  a  distinction  is  made  be- 
tween that  kind  of  moral  obligation  which  arises  from  affinity  by  blood,  and  all  the  other 
social  and  relative  duties,  which  must  be  referred,  exclusively,  to  the  forum  of  conscience  ; 
and  those  rights  which  may  be  enforced  at  law,  were  it  not  for  some  positive  rule,  which, 
with  a  view  to  the  public  good,  exempts  the  party,  in  a  particular  instance,  from  lejral  liabili- 
ty :  This  distinction  is  maintained  in  a  note  in  Wennall  v.  Adleij,  3  Bos.  &  Pul.  219.,  where 
all  the  cases  on  this  subject  are  reviewed.  The  result  of  the  investigation  is  thus  expressed. 
"  An  express  promise,  therefore  as  it  should  seem,  can  only  revive  a  precedent  cood  consid- 
eration, which  might  have  been  .  enforced  at  law,  through  the  medium  of  an  implied  promise, 
had  it  not  been  suspended  by  some  positive  rule  of  law  ;  but  can  give  no  original  right  of 
action,  if  the  obligation  on  Which  it  is  founded,  never  could  have  been  enforced  at  law, 
though  not  barred  by  any  legal  maxim  or  statute  provision."  This  language  is  adopted  in 
the  opinion  of  Spencer,  J.  in  Smith  v.  Ware,  13  I.  R.  257.  See  further,  in  Edwards  v.  D«- 
vis,  16  J.  R.  281,  283.  note  («). 


20  Of  the  Nature  and  Parts  [Part  1. 

of  them  is  insufficient ;  as,  in  consideration  of  forbearance  of  a  debt  due  from 
the  defendant  and  his  son  ;  though,  as  to  the  debt  of  the  son,  it  is  of  no 
value,  (x)  And  the  void  consideration  need  not  be  proved. (y)  But  if  one  of 
the  considerations  is  found  false  by  the  jury,  the  action  fails. (z)  Or,  if  one  of 
the  considerations  is  unlawful,  that  vitiates  the  whole,  and  the  plaintiff  shall 
recover  for  nothing  ;  as,  in  consideration  of  2s.,  and  the  escape  of  R.  ;  for 
the  permitting  the  escape  is  unlawful,  (a)  (25) 

10.    OF  A  CONSIDERATION   FROM  A  THIRD   PERSON. 

A  promise  in  some  cases  is  valid  though  the  consideration  on  which  it  is 
made  proceed  in  part  from  another ;  as,  if  a  man  promise  a  pig  of  lead  to  A., 
and  his  executor  give  lead  for  that  purpose  to  B.   who  undertakes  to  deliver  it 
to  A.  ;  an  action  lies  by  A.  against  B.  upon  his  undertaking,  (b)     *So,  in  the 
case  of  Dutton  and  wife  v.  Pool,(c)  the    plaintiff  declared,  that  his    wife's  fa- 
ther being  seised  of  certain  lands  now  descended  to  the  defendant,  and  being 
about  to  cut  down  1000/.  worth  of  timber  off  from  the  said  lands  to  raise  a 
portion  for  his  daughter,  the  defendant,  being  his  heir,  promised  the  father,  in 
consideration  that  he  would  forbear  to  fell  the  timber,  that  he  would  pay  the 
daughter  a  000/.     After  verdict  for  the  plaintiff,  upon  non  assumpsit,  it  was 
moved  in  arrest  of  judgment,  that  the  action  ought  not  to  have  been  brought 
by  the  daughter,  but  by  the  father ;  or  if  the  father  were  dead,  by  his  execu- 
tors, for  the  promise  was  made  to  the  father,  and  the  daughter  was  neither  pri- 
vy nor  interested  in  the  consideration,  nothing  being  due  to  her :  but  Scroggs, 
Ch.  J.  said,  that  there  was  such   apparent  consideration  of  affection  from  the 
father  to  his  children,  for  whom  nature  obliged  him  to  provide,  that  the  consid- 
eration and  promise  to  the  father  might  well  extend  to  the  children.     Judg- 
ment for  the  plaintiff ;  for  the  son  had  the  benefit  by  having  the  wood,  and  the 
daughter  had  lost  her  portion  by  these  means.     But,  in  general,  it  is  necessary 
that  the  consideration  on  which  the  promise  is  founded  should  move  from  the 
party  in  whose  favour  the  promise  is  made.     Thus,  in  the  case  of  Bourne  v. 
Mason,  (d)  where  the  plaintiff  declared,  that  A.  being  indebted  to  the  plaintiff 
and  defendant  in  two  several   sums  of  money,  and  B.  being  indebted  to  A.  in 
another  sum,  and  there  being  a  communication  between  the  parties,  the  defend- 
ant in  consideration  that  A.  would  permit  the  defendant  to  sue  B.  in  A.'s  name 
for  the  recovery  of  the  sum  due  from  B.  to  A.  promised  that  he,  the  defendant, 
would  pay  A.'s  debt  to  the  plaintiff,  and  alleged   that  A.  permitted   the   defend- 
ant to  sue  accordingly,   and  that  he  recovered.     After  verdict  for  the  plaintiff, 


(x)  1  Sid.  38.  («)  Cro.  El.  199.    See  also  1  Sid.  38. 

(y)  Com.  Dig.  Action  upon  Assumpsit,  B.         (6)   1  Rol.  Abr.  27. 1.  40.  31. 1.  5. 
13.                                     ■  (c)  2  Lev.  210. 

(z)  Cro.  El.  848.  (rf)   1  Vent.  6. 


(25)  In  Crawford  v.  Morrell,  8  J.  R.  195.  2d  edit,  it  was  held,  that  a  parol  contract  to  pay 
the  plaintiff  for  permitting  certain  land  to  remain  open  as  a  public  road,  and  also  to  pay 
him  for  certain  other  lands  in  the  possession  of  the  defendant,  and  ■which  the  plaintiff 
claimed,  is  void  ;  the  whole  being  one  entire  contract,  and  the  latter  clause  being  within 
the  statute  of  frauds. 

*21  * 


Chap.  1.]  Of  a  Contract  and  Promise.  21 

upon  non  assumpsit,  it  was  moved  in  arrest  of  judgment,  that  the  plaintiff 
could  not  maintain  this  action  :  and  of  this  opinion  were  the  court,  observing, 
that  the  plaintiff  was  a  mere  stranger  to  the  consideration,  having  done  nothing 
of  trouble  to  himself,  or  of  benefit  to  the  defendant.  And  in  the  case  of  Crow 
v.  Rogers,  (e)  where  the  plaintiff  declared,  that  J.  S.  was  indebted  to  the 
plaintiff,  and  it  was  agreed  between  J.  S.  and  the  defendant,  that  the  defendant 
should  pay  to  the  plaintiff  the  debt  due  to  him  from  J.  S.,  and  that  J.  S.  should 
make  the  defendant  a  title  to  a  house,  in  consideration  whereof  the  defendant 
promised  to  pay  to  the  plaintiff  the  debt  due  to  him  from  J.  S.,  and  then  aver- 
red that  J.  S.  was  always  ready  to  perform  his  part  of  the  agreement :  on  de- 
murrer, judgment  was  given  for  the  defendant,  because  the  plaintiff  was  a 
stranger  to  the  consideration. 

*11.  OF  A  CONSIDERATION  WHICH  THE  PARTY  HAS 
NOT  THE  POWER  TO  GRANT. 

The  consideration  must  be  such  as  the  party,  to  whom  a  promise  is  made, 
has  a  power  by  law  to  perform,  or  cause  to  be  performed,  otherwise  the  pro- 
mise cannot  be  enforced.  Thus,  in  the  case  of  Harvey  v.  Gibbons(f)  the 
plaintiff  declared,  that  he  being  bailiff  to  J.  S.,  the  defendant  in  consideration 
that  the  plaintiff  would  discharge  defendant  of  a  debt  due  to  J.  S.,  promised, 
&c.  After  verdict  and  judgment  for  the  plaintiff  in  the  court  below,  it  was 
reversed  in  B.  R.,  because  the  plaintiff  could  not  discharge  a  debt  due  to  his 
master.  And  the  principle  established  by  this  case  was  recognized  by  Lord 
Kenyon,  Ch.  J.  in  the  case  of  Nerot  v.  Wallace,  (g)  where  the  consideration 
was,  that  the  plaintiffs,  who  were  assignees  under  a  commission  of  bankrupt 
against  J.  S.  would  forbear  to  proceed  to  have  the  examination  of  J.  S.  taken 
before  the  commissioners  concerning  certain  sums,  with  which  J.  S.  was  charg- 
ed, and  that  the  commissioners  would  forbear  and  desist  accordingly.  Lord 
Kenyon  said,  "  The  ground  on  which  I  found  my  judgment  is  this  ;  that  every 
person  who,  in  consideration  of  some  advantage  either  to  himself  or  another, 
promises  a  benefit,  must  have  the  power  of  conferring  it  up  to  the  extent  to 
which  the  benefit  professes  to  go  ;  and  that  not  only  in  fact,  but  law."  Now 
the  promise  made  by  the  assignees  in  this  case,  which  was  the  consideration  of 
the  defendant's  promise,  was  not  in  their  power  to  perform  ;  because  the  com- 
missioners had  nevertheless  a  right  to  examine  the  bankrupt.  And  no  collu- 
sion of  the  assignees  could  deprive  the  creditors  of  the  right  of  examination 
which  the  commissioners  would  procure  them.  The  assignees  stipulated  not 
only  for  their  own  acts,  but  also  that  the  commissioners  should  forbear  to  ex- 
amine the  bankrupt ;  but  clearly  they  had  no  right  to  tie  up  the  hands  of  the 
commissioners  by  any  such  agreement.  And  if  any  proposal  of  that  sort  had 
been  made  to  the  commissioners,  they,  as  acting  in  a  public  duty,  would  have 
been  guilty  of  a  breach  of  that  duty  in  acceding  to  it. 

(e)    Stra.   592.      See  also   1  Bos.  &  Pul.         (/)  2  Lev.  161. 
101.  n.  c.     3  Bos.  &  Pul.  149.  n.  a.  (g)  3  Term  Rep.  22. 

*22 


23  Of    the  Construction  of  Contracts,  8>c.     [Part  1. 


*  CHAPTER  II. 


1.     OF  THE  CONSTRUCTION  OF  CONTRACTS  AND 
AGREEMENTS. 


Having  in  the  former  Chapter  treated  of  the  general  nature  and  parts  of  a  con- 
tract and  promise,  I  propose  in  the  present  Chapter  to  show,  first,  the  general 
rule  adopted  in  the  construction  of  contracts  and  agreements  ;  secondly,  what 
shall  be  deemed  a  penalty  or  stipulated  damages  for  securing  the  performance 
of  a  contract ;  thirdly,  the  power  of  the  parties  to  cancel  or  rescind  a  contract 
or  agreement ;  and,  lastly,  the  general  rules  to  be  observed  with  regard  to  the 
performance  of  a  contract. 

The  general  rule  adopted  in  our  courts  of  law  and  equity,  in  the  construction 
of  a  contract  or  agreement  is,  that  it  shall  be  construed  according  to  its  sense 
and  meaning,  as  collected,  in  the  first  place,  from  the  terms  used  in  it,  which 
terms  are  themselves  to  be  understood  in  their  plain,  ordinary,  and  popular  sense, 
unless  they  have  generally,  in  respect  to  the  subject  matter,  as  by  the  known 
usage  of  trade,  or  the  like,  acquired  a  peculiar  sense,  distinct  from  the  popular 
sense  of  the  same  words  ;  or  unless  the  context  evidently  points  out  that  they 
must,  in  the  particular  instance,  and  in  order  to  effectuate  the  immediate  inten- 
tion of  the  parties  to  that  contract,  be  understood  in  some  other  special  and  pecu- 
liar sense,  (a)  (26)  So,  with  regard  to  mercantile  instruments,  the  rule  is,  that  the 

(«)  Per  Lord   Ellenborough,  4  East  Rep.   135. 


(26)  See  Sumner  v.  Williams,  8  Mass.  Rep.  162,214.  Fowle  v.  Bigelow,  10  Mass.  Rep. 
379.  Hopkins  v.  Young,  11  Mass.  Rep.  302.  When  different  instruments  are  executed  at 
the  same  time,  by  the  same  parties,  but  are  all  parts  of  the  same  transaction,  the  court  will 
suppose  such  priority  in  the  execution  of  them,  as  will  affect  the  intention  of  the  parties. 
Newell  v.  Wright,  3  Mass.  Rep.  138.  When  descriptive  words  include  an  immaterial  cir- 
cumstance, this  is  not  to  be  construed  as  a  stipulation,  warranty  or  condition,  rendering 
the  whole  contract  dependent  on  that  circumstance  ;  but  where  such  stipulation  is  clearly 
expressed,  it  must  have  its  effect.  Manly  v.  The  United  M.  &  F.  Ins.  Co.,  9  Mass.  Rep.  85,  90. 
Asa  general  rule,  words  of  a  general  import  are  restrained  by  particular  expressions  in  the 
same  instrument.  Lyman  v.  Clark,  Id.  235.  If  a  creditor  covenant  with  his  debtor,  that 
he  will  not  sue  him  within  a  limited  time,  such  covenant  will  not  apply  to  any  new  right 
of  action  which  the  creditor  may  have  against  the  debtor.  Brighamv.  Eveleth,  Id.  538.  See 
further,  Hawkins  v.  Berkley,  1  Wash.  204,  206.  Tabb  v.  Archer,  3  Hen.  &  Munf.  399. 
Harris  v.  Nicholas,  5  Munf.  483.  Ludlow  v.  M'Crea,  1  Wend.  228.  Jackson  v.  Delacroix, 
2  Wend.  433. 

*23 


Chap.  2.]       Of  the  Construction  of  Contracts.  23 

construction  should  be  liberal,  agreeable  to  the  real  intention  of  the  parties,  and 
conformable  to  the  usage  of  trade  ia  general,  and  of  the  particular  trade  to 
which  the  contract  relates,    (b) 

Pothier,  in  his  very  learned  treatise  on  obligations,(c)  lays  down  the  following 
(amongst  other)  rules  for  the  interpretation  of  agreements;  1.  We  ought  to  ex- 
amine what  was  the  common  intention  of  the  contracting  parties,  rather  than  the 
grammatical  sense  of  the  terms,  (d)     2.  When  a  clause  is  capable  of  two  sig- 
nifications, it  should  be  understood  in  that  which  will  have  some  operation,  rath- 
er than  that  in  which  it  will  have  none,  (e)     3.  Where  the  terms  of  a  contract 
are  capable   of  two  significations,   we    ought  to  understand  them  in  the  sense 
which  is  most  agreeable  to  the  nature  of  the  contract.  (/)     4.  Any  thing  which 
may  appear  ambiguous  in  the   terms  of  a   contract,  may  be   explained  by  the 
*CDmmon  use  of  those  terms  in  the  country  where  it  is  made,  (g)  5.  Usage  is 
of  so  much  authority  in  the   interpretation   of  agreements,   that  a  contract  is 
understood  to  contain  the  customary  clauses,  although  they  are  not  expressed. (h) 
6.    We  ought  to  interpret  one  clause  by  the  others   contained  in  the  same  act, 
whether    they  precede  or  follow  it.  8.  However  general  the  terms  may  be   in 
which   an  agreement  is  conceived,  it  only   comprises  those  things    respecting 
which  it  appears  that  the  contracting  parties  proposed  to  contract,  and  not  oth- 
ers which  they  never  thought  of.     10.  When  a  case  is  expressed  in  a  contract, 
on  account  of  any  doubt  which  there  may  be  whether  the  engagement  result- 
ing from  the  contract  would  extend  to  such  case,  the  parties   are  not  thereby 
understood  to  restrain  the  extent  which   the  engagement    has  of  right,  in  res- 
pect to  all  cases  not  expressed.      11.  In  contracts,  as   well  as  in  testaments,  a 
clause  conceived  in  the  plural  may  be  frequently  distributed  into  several  partic- 
ular clauses.   12.  What  is  at  the  end  of  a  phrase,  commonly  refers  to  the  whole 
phrase,  and  not  only  to  what  immediately  precedes  it,  provided  it  agrees  in  gen- 
der and  number  with  the  whole  phrase.     Now  these  rules  claim   our  particular 
attention,  not  only  on  account  of  the   high  estimation  in   which  the  opinions  of 
Pothier    are  always   received,(*)   but  because  these  rules  will  be  found  to  be 
quite  consonant  to  the  principles  of  the  English  law,  and  to  the  practice  of  our 
courts,  in  the  construction  of  contracts  and   agreements,  upon  examining  the 
authorities  which   I  have  already  cited  at  the  end  of  the  different  rules,  and 
to  a  few  others  which  I  shall  now  lay  before  the  reader. 

In  Plowdcn's  Commentaries,  (*)  it  is  said  "  That  if  any  persons  are  agreed 
upon  a  thing,  and  words  are  expressed  or  written  to  make  the  agreement, 
although  they  are  not  apt  and  usual  words,  yet  if  they  have  substance  in  them 
tending  to  the  effect  proposed,  the  law  will  take  them  to  be  of  the  same  effect 
as  usual  words  ;  for  the  law  always  regards  the  intention  of  the  parties,  and  will 


(6)  Doug.  277.  Abr.  510. 

(c)  Part  1.  c.  1.  s.    1.  art.  7.  Evans's  edi-  (g)  5  Vin.  Abr.  511.     1  Bl.   Rep.  258.  6 

tion.  Term  Rep.  338. 

(«')  See  also  5  Vin.  Abr.  510.  Cowp.  600.  (/*)  8  Bro.  P.  C.  341.  Doug.  201. 

1  Term  Rep.  703.  (*)  Via".  Sir  W.  Jones  Law  of  Bailments, 

(«)    Co.  Lit.  42.  a.  Cowp.  714.  p.  29.  &c. 

(/  Doug.  72,  3.  2  Bos.  &  Pul.  565.  5  Vin.  (i)  Fo.  140.  290. 

4  #24 


24  Of  the  Construction  of  Contracts.         [Part  I. 

apply  the  words  to  that   which,  in  common  presumption,  may  be  given  to  be 
their    intent.     And  such  laws  are  very    commendable:  for  if  the    law   should 
be  so  precise  as  always   to  insist  upon  a  peculiar   form   and   order    of  words 
in  agreements,  and  would  not  regard  the   intention  of  the  parties,  when  it  was 
expressed  in  other  words  of  substance,  but  would  rather  apply  the  intention  of 
the  parties  to  the  order   and  form  of  words,  than  the  words  to  the  intention  of 
the  parties,  such  law  would  be  more  full  of  form  than  of  substance.     But  our 
law,  which  is  the  most  reasonable  law  upon  earth,  regards  the  effect    and  sub- 
stance of  words  more  than  the  form  of  them,  and  takes  the  substance  of  words 
to   imply  the  form  thereof,  rather  than  that  the  intent  of  the  parties  should  be 
void  :  and  the  law  *takes  words  of  substance  that  are  rarely  used,  to  be  equi- 
valent to  words  of  substance  that  are  usual."     So,  in  contracts  it  is  not  material 
which  of  the  parties  speak  the  words,    if  the  other   agrees   to  them  ;  for  the 
agreement  of  the  minds  of  the  parties  is  the  only  thing  the  law  respects  in  con- 
tracts ;  and  such  words  as  express  the  assent  of  the  parties,  and  have  substance 
in  them,  are  sufficient,    (k)     And  Willes,  Ch.  J.  in  the  case  of  Packhurst  v. 
Smith,  (I)  observes,  "  it  is  a  known  maxim  in  law,    that    '  benignce  facienda 
sunt  interpretationes  chartarum  ut  res  magis  valeat  quam  periat?  1       There  is 
also   another,  that,  " verba  intcntioni  et  non  e  contra  debent  inservire"      His 
lordship  also  further  observes,  "  That  it  is  said  in  our  books  that  the  construc- 
tion of  deeds  ought  to  be  favourable,  and  as  near  to  the  apparent  intent  of  the 
parties  as  possibly  may  be,  and  as  the  law  will  permit ;  that  too  much  regard 
is  not  to  be  had  to  the  natural  and  proper  signification  of  words  and  sentences 
to  prevent  the   simple  intention  of  the  parties  from  taking  effect ;  for  that  the 
law  is  not  nice  in  grants,  and  therefore  it  doth  often  transpose  words  contrary 
to  their  order,  to  bring  them  to  the  intent  of  the  parties  ;  for  neither  false  Lat- 
in nor  false  English  will  make  a  deed   void,  if  the  intent  of  the  parties  doth 
plainly   appear.     1  have   collected  these  rules    and   maxims   from    Littleton, 
Plowden,  Coke,   Hobart,  and  Finch,   persons  of  the   greatest  authority.     But 
they  are  themselves  so    full  of  justice,  and   good  sense,  that  they  do  not  want 
any  authority  to  support  them,  and  I  do  not  know  that  they  were  ever  yet  con- 
troverted.    On  the  foundation  of  these  rules,  whenever  it  is  necessary  to  give 
an  opinion  upon  the  doubtful  words  of  a  deed,  the  first  thing  we  ought  to  en- 
quire into,  is,  what  was  the  intention  of  the  parties.     If  the  intent  be  as  doubt- 
ful as  the  words,  it  will  be  of  no  assistance  at  all.     But  if  the  intent  of  the  par- 
ties be  plain  and  clear,  Ave  ought,  if  possible,  to  put  such  a  construction  on  the 
doubtful  words  of  a  deed  as   will  best  answer  the  intention  of  the  parties,    and 
reject  that  construction   which  manifestly  intends  to  overturn  and  destroy  it. 
I  admit  that  though  the  intent  of  the  parties  be   never  so   clear,  it   cannot  take 
place  contrary  to  the  rules  of  law,  nor  can  we  put  words  in  a  deed  which  are 
not  there  ;  nor  put  a  construction  on  the  words  of  a  deed  directly  contrary  to 


(Jfc)  Ibid.  Fo.  140. 

(/)  Willes  Rep.  332.  Shep.  Touch,  c.  5.      p.  86. 
•25 


Chap.  2.]       Of  the  Construction  of  Contracts.  25 

the  plain  sense  of  them.  But  where  the  intent  is  plain  and  manifest,  and  the 
words  doubtful  and  obscure,  it  is  the  duty  of  the  judges  to  endeavour  to  find 
out  such  a  meaning  in  the  words  as  will  best  answer  the  intent  of  the  parties." 
And  Lord  Ch.  B.  Comyns  in  his  Digest  (m)  also  states,  "  That  an  agreement 
or  contract  shall  have  a  reasonable  construction,  according  to  the  intent  of  the 
parties  ;  as,  if  a  man  agree  with  B.  for  twenty  barrels  of  ale,  he  shall  not  have 
the  barrels  after  the  ale  is  spent."  So,  if  a  man  promise  payment  *without  say- 
ing to  whom,  it  shall  be  intended  to  him  from  whom  the  consideration  comes.(n) 
And  upon  a  promise  of  payment  according  to  the  rate  of  40s.  per  ton,  it  shall 
be  intended  that  he  will  pay  for  the  odd  pounds  according  to  the  same  rate.(o) 
Again,  if  one  promise  payment  upon  Easter-day,  if  A.  do  not  pay  the  same 
day,  A.  has  all  the  day  for  payment ;  and  therefore  it  shall  be  intended  of  a 
payment  afterwards  upon  request,  (p)  Pothier's  seventh  rule  of  construction 
is,  that  in  case  of  doubt,  a  clause  ought  to  be  interpreted  against  the  person 
who  stipulates  any  thing,  and  in  discharge  of  the  person  who  contracts  the 
obligation.  But  the  rule  of  construction  adopted  by  our  courts  of  law  is  quite 
the  reverse  ;  namely,  that  in  case  of  doubt,  the  words  of  a  promise,  or  cove- 
nant, shall  be  taken  most  strongly  against  the  promisor  or  covenantor,  (q) 
Lord  Bacon,  however,  in  commenting  upon  this  general  maxim,  says,  "  It  is  to 
be  noted  that  this  is  the  last  rule  to  be  resorted  to,  and  is  never  to  be  relied  upon 
but  where  all  other  rules  of  exposition  of  words  fail ;  and  if  any  other  rule 
come  in  place,  this  giveth  place ;"  and  adds,  "  that  it  is  a  point  worthy  to  be 
observed  generally  of  the  rules  of  law,  that  when  they  encounter  and  cross 
one  another,  that  be  understood  which  the  law  holds  to  be  worthier  and  to  be 
preferred  ;  and  it  is  in  this  particular  very  notable  to  consider,  that  this  being  a 
rule  of  some  strictness  and  rigour,  doth  not  as  it  were  its  office,  but  in  the  ab- 
sence of  other  rules  which  are  of  some  equity  and  humanity."  Lord  Eldon 
also,  in  a  very  recent  case,  observes,(r)  "  It  is  certainly  true  that  the  words  of 
a  covenant  are  to  be  taken  most  strongly  against  the  covenantor  ;  but  that  must 
be  qualified  by  the  observation,  that  a  due  regard  must  be  paid  to  the  intention 
of  the  parties,  as  collected  from  the  whole  context  of  the  instrument."  Though 
the  rule  of  construction  of  agreements  is  the  same  in  a  court  of  equity  as  in  a 
court  of  law,  yet  the  consideration  of  performance  differs ;  for  at  law  a  cove- 
nant and  agreement  must  be  strictly  and  literally  performed ;  but  in  equity  it  is 
sufficient  if  it  be  really  and  substantially  performed  according  to  the  true  in- 
tent and  meaning  of  the  parties,  so  far  as  circumstances  will  admit,  ("f ) 

The  executors  and  administrators  of  the  contracting  parties  are   generally 
comprehended  in  every  contract   though  not  mentioned, (s)  but  the  heir  is  not 


(m)  Tit.  Agreement,  C.  et  tit.  Parols.  (q)  Co.  Lit.  183.  a. 

(n)  Cro.  Ei.  149.  848.  Poph.  1S2.  Nov.  (r)  2  Bos.  &  Pul.  22. 

83.  (t)  Vide  3  Ves.  jun.  C92. 

(o)  Yelv.  134.  (s)  Com.  Di<r.  tit.  Covenant,  c.  1. 


(p)   1  Rol.  Abr.  15.1.  45. 


•26 


26  Of  the  Construction  of  Contracts.         [Part  I. 

bound    unless   expressly   named. (t)  (27)     AVe  have  just  seen(i)    that  where 
the  language  and   terms  of  a  contract  appear  doubtful  in  their  construction,  it 
may  be  explained  by  the  common  use  of  those  terms  in  the  country  or  place 
where  it  is  made,  and  not  where  the  action   is  brought  :(u)     But  such  a  mode 
of  construction  cannot  be  *adopted  in  any  case  where  it  would  militate  against 
any  general  rule  of  law ;  as,  where  corn  is  sold  at  a  fixed  price  per  bushel,  ev- 
idence that  either  a  customary   measure,  or  some   other   than  the    Winchester 
measure  was  intended,  is   inadmissible  ;  this  being  the   general    standard  mea- 
sure of  the  country  established  by   act  of  parliament. («)     And  though   it    be 
usual  that  mercantile  contracts  should  be  construed   conformably  to  the  usage 
and  custom  of  merchants,  yet   evidence  of  usage  is  not.   admissible  to  controul 
or  contradict   the   plain    unequivocal    language   of  a    contract   or    agreement. 
Thus,  where  A.  agreed  to  sell  to  B.  a  quantity  of  bacon,  which  he    warranted 
to  be  of  a  particular  quality,  and  upon  delivery  at  the  wharf  B.   weighed   and 
examined  part  of  the  bacon,  and  paid  for  the  whole  by  a  bill  at  two  months ; 
but  before  the  bill  became  due,  it  turned  out,  on  further  examination,  that  the 
bacon  was  not  agreeable  to  the  contract,  and  he   gave  notice  thereof  to  A.     It 
was  determined,  that  A.    could   not  give  in   evidence  a  custom  in   the   bacon 
trade,  that  the  buyer  was  bound  to  reject  the  contract  if  dissatisfied  therewith 
at  the  time  of  his  first  examining    the  commodity  ;  and  that  having  neglected 
to  do  so,  in  the  first  instance,  he  was  excluded  from  future  objections,  (w) 

Upon  a  contract  where  the  quantity  and  quality  of  an  article  are  not  mention- 
ed, the  previous  dealings  of  the  parties,  or  other  circumstances,  may  be  called 
in  aid  to  give  effect  to  the  contract,  and  to  explain  the  intention  of  the  parties, 
provided  such  evidence  does  not  controul  the  legal  sense  of  the  terms  of  the  con- 
tract ;  as,  if  two  men  should  bargain  for  wheat  without  mentioning  the  quantity 
or  sort,  it  would  be  an  imperfect  bargain ;  but  if,  by  their  former  dealings,  it 
appeared  that  wheat  of  a  particular  kind,  and  of  a  certain  quantity  had  been 
usually  delivered,  the  contract  or  bargain  may  be  construed  conformably  to 
such  previous  dealings  ;  but  the  subsequent  acts  or  dealings  of  the  contracting 
parties  cannot  be  allowed  to  controul  or  explain  their  original  mode  of  dealing 
and  intention. (x)  Upon  an  agreement  made  in  London,  to  pay  100/.  in  Dublin, 
payment  in  Irish  currency  shall  be  presumed,  (y)  So,  if  the  value  of  any  article 
is  stipulated  in  a  contract,  such  varue  shall  be  intended  to  be  the  value  at  the 
time  when  the  contract  is  to  t3ke  effect,  and  not  at  the  time  of  making  it ;  as, 
if  one  agrees  to  pay  at  such  a  day  five   quarters  of  wheat,  and  on    the  day  oi 


(t)  Bac  Abr.  tit.  Heir,  F.  2  Marsh.  Rep.  141.    See  also  Phillipps    on 

(j)  Ante,  23,  24.  Evid.  c.  10.  s.  2. 

(v)  1  Bl.  Rep.  25?.  (-r)    I  Powel  on  Contracts.  384. 

(«)  Vide  4  T.  R.  314.     6  T.  R.  333.  (;/)   Davis  Rep.   28. 

(to)    Yeates  v.  Pinn,  Holt's  Ca.  Ni.  Pri.  95. 


(27)  But  where  a  grantor   has    a  right  of  re-entry  into  :lands,  for  condition  broken,  his 
heir,   though  not  expressly  named,  may  avail  himself  of  the  covenant,  after  the  decease  of 
the  ancestor.  Jackson  v.  topping,  1  Wend.  388. 
*27 


'. 


Chap.  2.]         Of  the  Construction  of  Contracts.  27 

the  contract  they  were  worth  501.,  but  on  the  day  of  payment  only  51.  ;  the 
party  to  whom  the  promise  was  made  would  be  entitled  to  receive  either  the 
wheat  or  the  51.,  but  no  more.(z) 

In  some  cases  the  natural  and  ordinary  import  of  words  may  be  restrained, 
if  such  an  interpretation  would  render  the  agreement  wholly  *inoperative,  and 
be  manifestly  repugnant  to  the  real  intention  of  the  parties  ;  as,  where  a  man 
o-ave  his  promissory  note,  in  which  he  expressed  the  consideration  to  be  for 
money  previously  borrowed  and  received,  and  then  added  these  words,  "  which 
I  promise  never  to  pay  ;"  the  word  "never"  may  be  rejected,  (a)  Again, 
where  a  particular  construction  Avould  lead  to  consequences  ruinous  to  the  con- 
tractor, and  such  as  no  rational  or  prudent  man  could  be  presumed  to  have  con- 
templated, and  a  different  mode  of  construction  may  be  made  without  doing 
violence  to  the  terms  of  the  contract ;  such  an  interpretation  may,  it  is  pre- 
sumed, be  given.  (28) 

Though  it  be  a  general  rule  of  law,  that  parol  evidence  cannot  be  admitted 
to  contradict,  add  to,  or  vary  the  terms  of  any  written  instrument ;  (b)  yet 
consistently  with  this  rule  parol  evidence  is  admissible  to  show,  that  after  the 
making  of  the  agreement,  the  parties  entered  into  some  new  stipulation,  or 
agreed  to  extend  the  time  of  performance  ;  as  in  the  case  of  a  contract  to  de- 
liver bacon  on  particular  days,  paiol  evidence  of  a  subsequent  agreement  as  to 
the  extension  of  the  time  of  the  delivery  of  the  bacon  is  admissible. (c)  (29) 
So,  parol  evidence  will  be  allowed  to  explain  an  indefinite  or  immaterial  ex- 
pression, or  the  intention  of  the  parties  when  not  clearly  apparent  on  the  face 
of  the  instrument,  provided  the  evidence  is    not  inconsistent   therewith. (d)  (30) 


(z)  Dy.  Rep.  82.  b.  (c)   1  M.  &  S.  21. 

(a)  Vide  2  Atk.  32.  (d)  8  T.  R.  382.  384. 

(b)  Phil,  on  Evid.  c.  10.  s.  2. 

(28)  See  Lyman  v.  Chirk,  9  Mass.  Rep.  235. 

(29)  See  Fleming  v.  Gilbert,  3  J.  R.  528.  Keating  v.  Price,  1  J.  C.  22.  Bailey  v.  Johnson, 
9  Cowen,  115. 

(30)  See  Jackson  v.  Sill,  11  J.  R.  201.  Cole  v.  Wendell,  8  J.  R.  90.  2d  edit.  Brunt's  Ear's, 
v.  Bank  of  the  Metropolis,  1  Peters,  89,  92.  Corlelyon  v.  Van  Brundt,  2  J.  R.  357.  Fovle  v. 
Bigeloic,  10  Mass.  Rep.  379.  Speake  v.  United  States,  9  Cranch,  2S.  Ely  v.  Adams,  19  J. 
R.  313. 

Parol  evidence  is  admissible,  to  shew  that  a  bond  or  other  written  instrument  was  deliver- 
ed as  an  escrow.  Pawling  v.  United  States,  4  Cranch,  219,  222.  So,  the  declarations  of  a 
grantor  to  a  grantee,  made  after  the  execution  of  a  deed  of  trust,  but  before  the  grantee  has 
accepted  it,  are  proper  evidence  to  explain  the  trust.  Drum  v.  Simson,s  Les.  66Binn.  478. 
So,  a  writing  acknowledging  the  receipt  of  money,  may  be  explained  by  shewing  that  some- 
thing short  of  the  terms  of  it,  was  intended  ;  it  being  conclusive  only  as  to  the  amount  paid  ; 
for  a  receipt  is  not  evidence  of  a  contract,  but  of  payment.  Tucker  v.  Maxwell,  1 1  Mass. 
Rep.  143.  Johnson  v.  Johnson,  Id.  359.  363.  Ensign  v.  Webster,  1  J.  C.  145.  House  v.  Loir, 
2  J.  R.  378.  M'Kinstry  v.  Pearsall,  3  J.  R.  319.  Tobcy  v.  Barber,  5  J.  R.  G8.  Putnam  \. 
Lewis,  8  J.  R.  304.  2d  edit.  Johnson  v.  Weed,  9  J.  R.  310.  Maze  v.  Miller,  C.  C.  1806. 
MS.  Reports.  Whart.  Dig.  255.  Thompson  v.  Faussal,  1  Piters'  Rep.  185.  Hamilton  v. 
JV/'Gwrc's  Exrs.  3  Serg.  &  R.  355.  But  parol  evidence  is  not  admissible  to  shew,  that  a 
receipt  given  twenty-five  years  ago,  was  for  continental  money  ;  and  therefore,  of  less  value 
than  the  sum  expressed.  Robert  v.  Gamie,  3  Caines,  14.  Although  parties  and  privies  arc 
estopped  from  contradicting  a  written  instrument,  by  parol  proof,  yet  the  rule  does  not  apply 
to  strangers,  who  have  an  interest  in  knowing  the  true  state  of  the  case.  Jfete  Berlin  v. 
.Yorwich,  10  J.  R.  229. 

*28 


28  Of  Contracts  with  a  [Part  I. 

And  parol  evidence  is  also  admissible  to  contradict  the  terms  and  circumstan- 
ces under  which  a  contract  was  entered  into,  though  contrary  to  what  is  ex- 
pressed in  the  instrument,  in  all  cases  where  the  consideration  has  been  ille- 
gal ;  as  for  simony,  usury,  compounding  of  felony,  &c.(e)  And  where  fraud 
is  imputed,  the  party  who  complains  of  the  fraud  may  prove  any  circumstance, 
however  contrary  to  the  statement  in  the  instrument,  to  shew  the  fraudulent 
nature  of  the  transaction  ;  (31)  unless  indeed  where  both  parties  are  in  pari 
delicto,  and  one  is  endeavouring  to  enforce  the  contract  against  the  other  ;  in 
which  case  both  the  parties  shall  be  estopped  from  contradicting  the  express 
terms  of  the  agreement.  (/)  (32) 

2.  OF  CONTRACTS  OR  AGREEMENTS  WITH  A  PENALTY  OR 
STIPULATED  DAMAGES. 

A  penalty  is  a  forfeiture  annexed  to  a  contract  or  agreement,  either  for  the 
better  enforcing  a  prohibition,  or  by  way  of  security  for  the  doing  of  some  col- 
lateral act  agreed  upon  between  the  contracting  parties. 

Stipulated  damages  can  only  be  where  there  is  a  clear  unequivocal  agree- 
ment, which  stipulates  for  the  payment  of  a  certain  sum,  as  a  liquidated  *satis- 
faction  fixed  and  agreed  upon  by  the  parties,  for  the  doing  or  not  doing  certain 
acts  particularly  expressed  in  the  agreement. 

It  is  said,  in  the  case  of  Astleyv.  Weldon,(g)  that  where  the  payment  of  a 
smaller  sum  is  secured  by  a  larger,  it  must  always  be  considered  as  a  penalty, 
and  not  as  liquidated  damages.  So,  where  articles  contain  covenants  for  the 
performance  of  several  things,  and  then  one  large  sum  is  stated  at  the  end  to 
be  paid  on  breach  of  performance,  that  must  be  considered  as  a  penalty,  (h) 
So,  where  a  doubt  is  stated  whether  the  sum  inserted  be  intended  as  a  penalty 
or  not,  if  a  certain  damage  less  than  that  sum  is  made  payable  upon  the  face  of 
the  same  instrument,  in  case  the  act  intended  to  be  prohibited  be  done,  that  sum 
shall  be  construed  to  be  a  penalty. (i)  But,  where  it  is  agreed  that  if  a  party 
do  such  a  particular  thing,  such  a  sum  shall  be  paid  by  him,  there  the  sum 
stated  may  be  treated  as  liquidated  damages,  (k)  In  one  case(Z)  it  was  said 
by  Lord  Loughborough,  "  That  an  agreement  for  liquidated  damages  can  only 
be  where   there    is  an  engagement  for  the  performance  of  certain  acts,  the  not 

(e)  Bui.  Ni.  Pri.  173.     2  Wils.  347.  (i)  Per  Lord  Eldon,  Ibid.  350. 

(/)   2  B.  &A.  370.  (k)  Per  Heath  J.  Ibid.  353. 

(g)  Per  Chambre  J.  2  Bos.  &  Pul.  354.  (1)   Orr  v.   Churchill,  1  H.  BI.  232. 
(h)  Per  Heath,  J.  Ibid.  353. 


(31)  The  law  is  well  settled,  that  parol  evidence  of  what  passed,  before,  and  at  the  exe- 
cution of  an  instrument,  is  admissible  in  cases  of  fraud.  Thompson  v.  White,  1  Dall.j  426. 
Christ  v.  D'ffebach,  1  Serg.  &  R.  464.  Hurst's  Les.  v.  Kirkbride,  cited  Per  Tilghman,  Ch.  J. 
in  Wallace  v.  Baker,  1  Binn.  616.  Boyce's  Exrs.  v.  Grundy,  3  Peters,  210,  219.  Parol  evi- 
dence was  also  admitted,  under  the  insolvent  act  of  Pennsylvania,  to  shew,  that  the  certifi- 
cate of  the  defendant  was  unfairly  and  illegally  obtained.     Pleasants  v.  Meng,  1  Dall.  3S0. 

(32)  See  Gates  v.  Winslow,  1  Mass.  Rep.  65.  Pearson  v.  Lord,  6  Id.  81,  84.  Per  Seicall, 
J.  Worcester  x.  Eaton,  11  Id.  368.  Denny  v.  Lincoln,  5  Id.  385.  See  also,  Greenwood  v. 
Curtis,  6  Id.  358,  381.  and  the  dissentintr  opinion  oi'  Sedgwick,  J.  362.  et  seq. 

*29 


Chap.  2.]        Penalty  or  Stipulated  Damages.  29 

doing  of  which  would  be  an  injury  to  one  of  the  parties ;  or  to  guard  against 
the  performance  of  acts,  which,  if  done,  would  also  be  injurious.  In  such  cases 
an  estimate  of  the  damages  may  be  made  by  a  jury,  or  by  a  previous  agree- 
ment between  the  parties,  who  may  foresee  the  consequences  of  a  breach  of 
the  engagement,  and  stipulate  accordingly." 

From  these  general  observations,  and  an  attentive  consideration  of  the  fol- 
lowing cases,  the  reader  will  distinguish  between  those  where  a  penalty  is  in- 
tended as  a  security  for  a  collateral  object,  and  those  in  winch  the  contract  it- 
self has  assessed  the  damages,  which  the  party  is  absolutely  to  pay  upon  his 
doing  or  omitting  to  do  what  he  has  promised.(33)  Thus,  in  the  case  of  Roy  v. 
the  Duke  of  Beaufort,(?n)  where  the  plaintiff  was  jointly  bound  with  his  son  in 
a  bond,  in  the  penalty  of  100Z.,  that  the  son  should  not  commit  any  trespass  in 
the  defendant's  royalty,  by  shooting,  hunting,  fishing,  &c,  Lord  Hardwicke  said, 
"  I  am  of  opinion,  that  when  these  sort  of  bonds  are  given  by  way  of  stated 
damages  between  the  parties,  it  is  unreasonable  to  imagine  they  could  only  be 
intended  as  a  bare  security  that  the  obligor  should  not  offend  for  the  future.  Was 
this  the  case,  in  what  respect  was  a  gentleman  in  a  better  condition  who  has  such 
a  bond  than  he  was  before,  if  after  he  has  obtained  judgment  at  law,  a  court  will 
give  him  no  other  satisfaction  than  the  bare  value  of  the  price  of  the  game  that 
is  killed?"  So,  in  the  case  of  Rolfe  v.  Peterson, (n)  it  was  determined,  that 
where  a  lessee  covenants  that  in  case  any  part  or  parcel  of  the  ancient  meadow 
or  pasture  ground,  *or  any  other  part  of  the  premises  that  had  not  been  in  til- 
lage within  the  last  twenty  years  from  the  time  of  making  the  lease,  should,  dur- 
ing the  continuance  of  the  term,  be  digged  up,  ploughed  or  converted  into  til- 

(m)  2  Atk.  190. 

(n)  2  Bro.  P.  C.  436.     See  also  Ponsonby    v.  Mams,  2  Bro.  P.  C.  431.  S.  P. 

(33)  The  question,  whether  a  sum  of  money  mentioned  in  an  agreement,  is  intended  as  a 
security  for  the  performance,  or  as  liquidated  damages  for  the  non-performance  of  the  con- 
tract, is  always  a  matter  of  construction  ;  and  for  the  purpose  of  discovering  the  meaning  of 
the  parties,  the  court  will  avail  itself  of  extraneous  circumstances  ;  such  as  the  subject  mat- 
ter of  the  contract,  the  situation  of  the  parties,  the  usages  to  which  they  are  understood  to 
refer,  and  other  facts  and  circumstances  of  their  conduct ;  although  their  words  are  to  be 
taken  as  proved,  exclusively,  by  the  writing  itself.  Perkins  v.  Lyman,  1 1  Mass.  Rep.  76. 
See  Spencer  v.  Tilden,  5  Cowen,  144.  Where,  in  articles  of  agreement,  for  the  sale  and 
exchange  of  certain  lands,  it  was  covenanted,  that  if  either  party  should  fail  to  perform  the 
agreement,  the  party  failing  should  forfeit  and  pay  to  the  parly  performing  it,  the  sum  of  2,000 
dollars,  as  damages;  it  was  held,  that  this  was  to  he  considered  as  a  penalty,  and  not  as  liqui- 
dated damages.  Dennis  v.  Cummins,  3  J.  C.  297.  So,  where  a  penalty  is  annexed  to  a 
breach  of  covenant  in  an  agreement,  in  which  a  repetition  of  the  same  breach  is  contem- 
plated, such  penalty  will  not  be  considered  as  liquidated  damages.  Pei-kins  v.  Lyman,  ut 
supra.  See  Spencer  v.  Tilden,  5  Cowen,  144,  and  p.  150.  n.  (b).  Mayo  v.  Judah,  5  Munf. 
495,  506. 

But  where  a  party  covenanted  to  convey  certain  lands,  by  a  certain  day,  or  in  lieu  there- 
of, to  pay  the  other  party  800  dollars  ;  on  an  action  of  covenant  broken,  it  was  held,  that 
the  plaintiff  was  entitled  to  recover  the  800  dollars,  with  interest;  the  same  being  in  the 
nature  of  liquidated  damages,  and  not  a  penalty.  Slosson  v.  Beadle,  7  J.  R.  72.  and  see 
note  (a)  Id.  So,  where  one,  in  consideration  of  one  dollar,  agreed,  by  deed,  not  to  run  a 
stage  on  a  certain  specified  road,  under  penalty  of  290  dollars  ;  it  was  held,  that  the  sum 
mentioned  as  a  penalty,  ought  to  be  considered  as  liquidated  damages.  Pierce  v.  Fuller,  8 
Mass.  Rep.  223.  See  further,  Tardeve.au  v.  Smith,  Hardin,  175,  179.  Hasbrouck  v.  Tappen, 
15  J.  R.  200.     Nobles  v.  Bates,  7  Cowen,  307. 

*30 


30  Of  Contracts  ivith  a  [Part  L 

la<re,  he  shall  pay  the  further  yearly  rent  or  sum  of  5/.  for  every  acre  so  to  be 
broken  up  or  converted  into  tillage ;  this  increased  rent  is  not  to  be  considered 
as  a  penalty,  but  as  a  liquidated  satisfaction  fixed  and  agreed  upon  between  the 
parties.  And  therefore  if  an  action  is  brought  for  recovering  it,  a  court  of  equi- 
ty will  not  interpose,  or  give  any  relief. 

So,  in  the  case  of  Lowe  v.  Peers,  (o)  which  was  an  action  upon  a  marriage- 
contract  to  the  effect  following  :    "  I  do  hereby  promise  Mrs.   Catherine  Lowe, 
that  I  will  not  marry  with  any  person  besides  herself :  If  I  do,  I  agree  to  pay 
to  the  said  Catherine  Lowe  1000/.  within  three  months  next  after  I  shall  marry 
any  body  else.      Witness  my  hand   and  seal,   Newsham  Peers.''''      This  deed 
was  executed  in  1757.     And  in  1767,  Peers  married  another  woman;  where- 
upon this  action  was  brought ;  and  at  the  trial,  the  jury  found  a  verdict  for  the 
plaintiff,    ]  0007.   damages.      But  a  question  was  raised  for   the  opinion  of  the 
Court,  whether  the  1000/.,  mentioned  in  the  deed  was  inserted  as  a  penalty,  or 
as  liquidated  damages.     And  the  Court  determined,  that  the  deed  itself  liquida- 
ted the  certain  sum  :    it  was  ascertained  and  fixed    between  the  parties  them- 
selves ;  and  was  therefore  the  true  and  proper  quantum  of  the  damages.     Lord 
Mansfield  said,  "  The  money  was  payable  upon  a  contingency  which  has  hap- 
pened ;  and  therefore  it  ought  to  be  paid.     There  is  a  difference  between  cove- 
nants in  general,  and  covenants  secured  by  a  penalty  or  forfeiture :  In  the  latter 
case,  the  obligee  has  his  election  :  he  may  either  bring  an  action  of  debt  for  the  pen- 
alty, and  recover  the  penalty,  (after  which  recovery  of  the  penalty,  he  cannot  resort 
to  the  covenant ;  because  the  penalty  is  to  be  a  satisfaction  for  the  whole)  or,  if 
he  does  not  choose  to  go  for  the  penalty,  he  may  proceed  upon  the  covenant,  and 
recover  more  or  less  than  the  penalty,  tolies  quoties.(34)   And  upon  this  distinc- 
tion they  proceed  in    courts  of  equity.     They  will   relieve    against  a  penalty 
upon  a  compensation  :  but  where  the  covenant  is  to  pay  a  particular  liquidated 
sum,  a  court  of  equity  cannot  make  a  new  covenant  for  a  man,  nor  is  there  any 
room  for  compensation  or  relief.     As,  in  leases  containing  a  covenant   against 
ploughing  up  meadow  ;  if  the  covenant  be,  '  not  to  plough,'  and  there  be  a  pen- 
alty, a  court  of  equity  will  relieve  against  the  penalty,  or  will  even  go   further 
than  that  to  preserve  the  substance  of  the  agreement :  but  if  it  is  worded  '  to  pay 
5/.  an  acre  for  every  acre  ploughed  up  ;'  there  is  no  alternative,  no  room  for  any 
relief  against  it ;  no  compensation  ;  it  is  the  substance  of  the  agreement.     Here 
the  specified  sum  of  1000/.  is  found  in   damages  :  it  is  the  particular  liquidated 
sum  fixed  and  agreed  *upon  between  the  parties  ;  and  is   therefore  the  proper 
quantum  of  the  damages." 

So,  in  the  case  of  Fletcher  v.  Dyche,{p)  which  was  an  action  of  assumpsit 


(«)  4  Burr.  2225.  (p)  2  Term  Rep.  32. 

(34)  Canal  Co.  v.  Sanson,  1  Birm.  70.  Martin  v.  Taylor,  C.  C.  April,  1S03,  MS.  Re- 
ports, Whart.  Di<r.  93.  Clark  v.  Bush,  3  Cowen,  151.  Graham  v.  Bickham,  4  Dall.  149. 
Payne  v.  Ellzey,  2  Wash.  143.  United  States  v.  Arnold,  1  Gall.  343.  S.  C.  in  Error,  9  Cranch, 
104.  Harris  v.  Clapp,  1  Mass.  Rep.  303.  Peril  v.  Wallis,  2  Dall.  252.  AlwelVs  Exrs.  v. 
Fowles,  1  Munf.  175.  See  also,  Gray  v.  Crosby,  19  J.  R.  219. 
*31 


Chap.  2.]       Penalty  or  Stipulated  Damages.  31 

for  work  and  labour,  and    goods  sold  and  delivered.     The  defendant  pleaded  a 
set-off  for  money  due   upon  a  bond,  with  a  condition  reciting,  that  the  plaintiff 
had  contracted  and  agreed   with  the  defendant  that  he  would  perform  and  exe- 
cute all  the  smith's  and  ironmonger's  work  to  be   done   and  performed   in  and 
about  the  repairs  of  the  parish  church  of  St.   Mary-lc-Bow,   and   which  were 
mentioned  and  expressed  in  the   said   particular   plan  or  estimate,  and  in  the 
manner  therein  directed  to  be  done,  and  find  and  provide   all  the  materials  for 
the  doing  thereof,  within  the  time  or  space  of  six  weeks  from  the  day  of  the 
date  of  the  said  writing   obligatory,  at   and  for  the  price  or  sum  of  118/.  18s., 
which    was   agreed  to  be  paid   in  three   months  after   the   said  parish  church 
should  be  completely  repaired ;  and  had   agreed  that   if  he   should   not  have 
done  and  performed  the   said  smith   and  ironmonger's   work  within   the  time 
thereinbefore  mentioned  to  have  been   agreed  upon   and   limited  for  the  doing 
thereof,  he  would  forfeit  and  pay  to  the  defendant   the  sum   of  10/.   for  every 
week  after  the  expiration  of  the   time  agreed  upon  and   limited  for   the   doing 
thereof,  until  the    said  smith's    and    ironmonger's   work  should   be  completely 
finished.     The  plea   then   stated   that    the   defendant  did  not,  within  the  said 
space  of  six  weeks  from  the  day  of  the  date  of  the  said  writing  obligatory, 
perform  or  execute  all  the  smith's  and  ironmonger's  work,  &c,  but  suffered  and 
permitted  the  same  to  remain  unfinished  for  the  space  of  four  weeks  next  after 
the  expiration  of  the  time   agreed  upon  for  the  doing  thereof,  whereby   the 
plaintiff  became  liable  to  pay  to  the  defendant  the  sum  of  40/.,  being  at  and 
after  the  rate  of  10/.  for  each  and  every  week  of  the  said  four  weeks ;  and  the 
sum  of  40/.,  and  every  part  thereof,  at  the  time  of  the  commencement  of  this 
suit,  was  justly  due  and  owing  from  the  plaintiff  to  the  defendant,  upon  and  by 
virtue  of  the  said  writing  obligatory   and  the  condition  thereof.     To  this  plea 
there  was  a  general  demurrer,   and  joinder  in  demurrer.     And  the  objection 
upon  the  demurrer  to  the  plea  was,  that  the  weekly  payments  were  in  the  na- 
ture of  a  penalty,  and  not  as  stipulated  damages  ;  and  therefore   could  not  be 
the  subject  of  a  set-off.     But  the  Court  overruled  this  objection,  and  determined 
that  the  weekly  payments  were    not  penalties,  but  in  the   nature   of  liquidated 
damages,  and  might  be  set  off  against  the  plaintiff's  demand.     Ashurst  Just, 
said,  "  The  sums  set  off  are  in  the  nature  of  liquidated  damages,  and  are  such 
a  kind  of  penalty,  if  they  may  be    called  by   that  name,  as  a  court  of  equity 
would  not  relieve  against.     The  object  of  the  parties  in  naming  this    weekly 
sum,  was  to  prevent  any  *altercation   with  respect  to  the  quantum  of  damages 
which  the  defendant  might  sustain  by  reason   of  non-performance   of  the  con- 
tract.    It  would  have  been  difficult  for  the  jury  to  have  ascertained  what  dam- 
ages the  defendant  had  really   suffered  by  the    breach  of  the  agreement ;  and 
therefore    it    was  proper  for    the   contracting  parties  to  ascertain  it  by  their 
agreement:   So  that  this  is  a  case  of  stipulated  damages  ;  and  it  is  not  to  be 
considered  as  a  penalty."     And  Butter  J.  said,  "  The   principal  question  to  be 
considered  is,  whether  this  is  in  the  nature  of  liquidated  damages  or  a  penalty. 
When  there  is  a  penalty  in  the  bond,  it  is  strange  that   the  sum  mentioned  in 

5  *32 


32  Of  Contracts  ivith  a  [Part  I. 

the  condition  should  be  called  a  penally  ;  I  do  not  know  how  there  can  be  an 
equitable  and  a  legal    penalty.     But  this  is   as  strongly   a   case   of  liquidated 
damages  as  can  possibly  exist,  and  is  like   the  case  of  demurrage.     In  either 
case  it  is  impossible  to  ascertain  precisely  what  damages  the  party  has  really 
sustained  ;  and  therefore  the  contracting  parties  agree  to  pay  a  stipulated  sum." 
So,  in  the  case  of  Barton  v.   Glover,(q)  which  was  an  action  of  assumpsit  ; 
and   at  the  trial  it  appeared  that  the  plaintiff  and  defendant  were   coach  pro- 
prietors at   Groydon,  and  on  the  2d    of  April,   1815,    they  entered    into    an 
agreement,  the  substance  of  which  was,  that  in  consideration  that  Barton  would 
pay  to  the-defendant  the  sum  of  175/.,  the  defendant  would  withdraw  his  stage- 
coach from  the  road,  and  not  engage   or  concern  himself  in  driving  any  other 
stage-coach   on  the  road  from    Croydon    to   London ;  and    the   following   was 
the  clause  in  the  agreement   upon  which  the   question    arose  :  "  And    for   the 
due  and  punctual  performance  of  this  agreement,  each  of  the  said    parties    to 
these  presents  does  hereby  agree  to  bind  himself  to  the  other  of  them  in  the 
sum  of  500/.,  to  be  considered  and   taken  as  liquidated   damages,    or  sum    of 
money  forfeited  or  due  from  the  one  party  to  the  other  who  shall  neglect  or  re- 
fuse to  perform  his  part  of  the  agreement."     It  was  contended  by  the   defend- 
ant's counsel,  that  this  ought  to  be  taken  as  a  penalty,  and  not  as  liquidated  da- 
mages. But  Gibbs  C.  J.  said,  "  There  are  a  great  many  cases  in  which  stipula- 
ted damages  are  contracted  for,  but  in  which  neither  courts  of  law  nor  equity  will 
permit   the  parties   to  recover  them.     In  Astley  v.  Weldon(r)  there  was  no 
stipulation  that  the  damages  should  be  liquidated ;  and  in  that  case  there  were 
several  minor  fines,  which  repudiated  the  idea  that  the  whole  penalty  should  be 
due  for  every  breach.     But  in  the  present  case,  unless  the  damages  are  to  be 
considered  as  liquidated,  and    definitively  ascertained  by  the  parties  themselves 
the  clause  in  the  agreement  means  nothing." 

But  in  the  case  of  Erringlon  v.  Aynesly,(s)  where  a  bond  was  entered  into 
in  the  penal  sum  of  9000/.  for  the  performance  of  covenants  to  build  a  bridge 
for  6000/.,  and  the  materials  valued  at  3000/.,  and  to  support  the  bridge  *for 
seven  years  ;  the  6000/.  was  actually  paid,  and  the  bridge  was  built,  but 
thrown  down  by  a  flood  a  year  afterwards.  An  action  was  brought  upon  the 
bond  ;  but  an  injunction  was  granted,  and  an  issue  of  quantum  damnifcatus  or- 
dered ;  the  sum  mentioned  in  the  bond  being  considered  as  a  penalty,  and  not 
as  a  liquidated  sum. 

And  in  the  case  of  Sloman  v.  Walter,  (t)  where  the  plaintiff  and  defendant 
were  partners  in  the  Chapter  Coffee-house,  and  upon  entering  into  the  partner- 
ship it  had  been  agreed  that  the  business  should  be  conducted  entirely  by  the 
plaintiff,  but  that  the  defendant  should  have  the  use  of  a  particular  room  in  the 
house  whenever  he  thought  proper.  And  in  order  to  enforce  this  agreement,  a 
bond  was  entered  into  by  the  plaintiff  to  the  defendant  in  the  penalty  of  500/. 


(q)  Holt  N.  P.  Cag.   43.  Man.  Index,  tit.         (s)  2Bro.  Ch.  Cas.  341. 
Penalty,  last  edit.  (')  1  Bro.  Ch.  C.  418. 

(r)  Ante,  29. 
*33 


Chap.  2.]         Penally  or  Stipulated  Damages.  S3 

After  some  time  the  defendant  demanded  the  use  of  the  room,  and  being  refus- 
ed, brought  an  action  for  the  penalty  of  the  bond.  The  plaintiff  filed  this  bill, 
praying  an  issue  to  try  quantum  damnificatus,  and  an  injunction  in  the  mean 
while.  Lord  Thurlow  Ch.  J.  said,  "  The  only  question  was,  whether  this  was 
to  be  considered  as  a  penalty,  or  as  assessed  damages.  The  rule  that  where 
a  penalty  is  inserted  merely  to  secure  the  enjoyment  of  a  collateral  object,  the 
enjoyment  of  the  object  is  considered  as  the  principal  intent  of  the  deed,  and 
the  penalty  as  only  accessional,  and  therefore  only  to  secure  the  damage  really 
incurred,  is  too  strongly  established  in  equity  to  be  shaken.  This  case  is  to  be 
considered  in  that  light.     The  injunction  must  be  continued  till  the  hearing. 

The  reporter  adds,  "  That  the  same  had  been  done  in  a  case  of  Hardy  v. 
Martin,  7th  May,  1783, (w)  where  the  plaintiff  and  defendant  had  been  partners 
as  brandy  merchants ;  on  plaintiff's  quitting  the  business,  and  selling  the  lease 
and  good  will  of  the  shop  to  the  defendant  for  300/.,  he  entered  into  bond  in 
600/.  penalty  not  to  sell  for  nineteen  years,  any  quantity  of  brandy  less  than  six 
gallons,  within  the  cities  of  London  and  Westminster,  or  five  miles  thereof,  or 
to  permit  any  person  so  to  do  in  his  name,  &c.  Upon  a  breach,  action  brought, 
and  a  verdict  for  the  penalty,  plaintiff  filed  this  bill,  praying  that  an  account 
might  be  taken  of  the  actual  damage  sustained  by  the  defendant,  and  an  issue  di- 
rected for  that  purpose  ;  and  that  on  payment  of  the  damages  defendant  might 
be  restrained  from  taking  out  execution  for  the  penalty  of  the  bond."  Upon 
motion  to  dissolve  the  injunction,  and  cause  shown,  the  rule  was  discharged. 

So,  in  the  case  of  Astley  v.  Weldon,(v)  which  was  an  action  upon  a  spe- 
cial agreement,  whereby  the  defendant,  in  consideration  of  a  certain  weekly 
salary,  agreed  with  the  plaintiff,  amongst  other  things,  that  *she,  the  said  defen- 
dant, would,  during  the  term  of  three  years,  at  the  usual  and  accustomed  hours 
in  each  day,  perform  at  the  plaintiff's  theatre,  in  the  several  public  performances 
to  be  from  time  to  time  exhibited  on  the  stage  of  the  theatre,  when  and  as  often 
as  she  should  be  required  ;  and  likewise  further  agreed  to  attend  all  rehearsals 
at  the  theatre  ;  and  also  that  she  would,  on  every  night's  public  performance, 
be  at  the  theatre,  at  least  one  half-hour  before  the  public  performance  should 
begin.  "And  lastly  it  was  agreed  on,  by  and  between  the  said  parties,  that 
either  of  them  neglecting  to  perforin  that  agreement,  according  to  the  tenor 
and  effect  and  the  true  intent  and  meaning  thereof,  should  pay  to  the  other  of 
them  the  full  sum  of  200/.  of  lawful  money  of  Great  Britain,  to  be  recovered 
in  any  of  His  Majesty's  courts  of  record  at  Westminster.'''' 

The  Court,  after  argument,  held,  that  the  sum  mentioned  in  the  agreement 
was  in  the  nature  of  a  penalty,  and  not  of  liquidated  damages  :  and  Lord  Eldon. 
Ch.  J.  in  giving  his  opinion  on  this  case  took  a  very  luminous  review  of  the 
cases  which  had  been  determined  on  this  subject,  and  the  principle  upon  which 
they  were  governed.  His  Lordship  observed,  "  That  when  the  cause  came  before 
me,  at  nisi  prius,  I  felt,  as  I  have  often  done  before  in  considering  the  various 
cases  on  this  head,  much  embarrassed  in  ascertaining  the  principle  on  which  those 

(u)  Since  reported  in  1  Cox  Rep.  26.  (r)  2  Bos.  &  Pul.  346. 


34  Of  Contracts  with  a  [Part  I. 

cases  were  founded  ;  but  it  appeared  to  me  that  tbe  articles  in  this  place  fur- 
nished a  more  satisfactory  ground  for  determining  whether  the  sum  of  money 
therein  mentioned  ought  to  be  considered  in  the  nature  of  a  penalty,  or  of  li- 
quidated damages,  than  most  others  which  I  had  met  with.  What  was  urged 
in  the  course  of  the  argument  has  ever  appeared  to  me  to  be  the  clearest  prin- 
ciple, viz.  that  where  a  doubt  is  stated  whether  the  sum  inserted  be  intended 
as  a  penalty  or  not,  if  a  certain  damage  less  than  that  sum  is  made  payable 
upon  the  face  of  the  same  instrument,  in  case  the  act  intended  to  be  prohibited 
be  done,  that  sum  shall  be  construed  to  be  a  penalty.  The  case  of  Sloman  v. 
Walter,  did  not  stand  in  need  of  this  principle  ;  for  there,  by  the  very  form  of 
the  instrument,  the  sum  appeared  to  be  a  penalty  ;  in  which  case  a  court  of 
equity  could  never  consider  it  as  liquidated  damages,  but  must  direct  an  issue 
of  quantum  damnificatus.  A  principle  has  been  said  to  have  been  stated,  in  sev- 
eral cases,  the  adoption  of  which  one  cannot  but  lament,  namely,  that  if 
the  sum  would  be  very  enormous  and  excessive,  considered  as  liquidated 
damages,  it  shall  be  taken  to  be  a  penalty,  though  agreed  to  be  paid  in  the 
form  of  contract.  This  has  been  said  to  have  been  stated  in  Rolfe  v. 
Paterson,  where  the  tenant  was  restrained  from  stubbing  up  timber. 
But  nothing  can  be  more  obvious  than  that  a  person  may  set  an  extra- 
ordinary value  upon  a  particular  piece  of  land,  or  wood,  on  account  of 
the  amusement  which  it  may  afford  him.  In  this  country,  a  man  has  a 
right  to  secure  to  himself  a  property  in  his  amusements  ;  and  if  *he  chooses 
to  stipulate  for  51.  or  50/.  additional  rent  upon  every  acre  of  furze  broken 
up,  or  for  any  given  sum  of  money  upon  every  load  of  wood  cut  and  stubbed 
up,  I  see  nothing  irrational  in  such  a  contract ;  and  it  appears  to  me  extremely 
difficult  to  apply,  with  propriety,  the  word  '  excessive,'  to  the  terms  in  which 
parties  choose  to  contract  with  each  other.  There  is,  indeed,  a  class  of  cases, 
in  which  courts  of  equity  have  rescinded  contracts  on  the  ground  of  their  be- 
ing unequal.  It  has  been  held,  however,  that  mere  inequality  is  not  a  ground 
of  relief.  The  inequality  must  be  so  gross  that  a  man  would  start  at  the 
bare  mention  of  it.  Necessity,  in  these  cases,  seems  to  have  obliged  the  courts 
to  admit  a  principle  nearly  as  loose  as  that  to  which  I  have  before  alluded. 
But  with  respect  to  the  case  of  Ponsonby  v.  Adams,  the  landlord  may  have 
set  a  value  upon  the  residence  of  a  particular  tenant  on  his  estate;  and  why 
should  he  not  upon  that  ground  have  stipulated,  that  if  such  tenant  should  cease 
to  reside  there,  his  rent  should  rise  to  150/.  1  Both  in  Rolfe  v.  Peterson,  and 
Ponsonhy  v.  Adams,  I  should  have  said,  that  what  was  matter  of  contract, 
bottomed  on  a  good  consideration,  should  not  be  looked  upon  as  a  penalty,  but 
should  be  considered  as  rent  reserved,  or  liquidated  damages.  In  Lowe,  v. 
Peers,  it  is  quite  clear  that  the  breach  of  promise  of  marriage  was  to  be  com- 
pensated for  in  damages.  It  was  a  contract,  that  in  case  the  party  failed  to 
perform  his  promise,  he  should  pay  the  sum  of  1000/.  The  case  of  Fletcher 
v.  Dyche,  is  very  strongly  to  the  present  purpose.  In  that  case,  a  bond  in  a 
penal  sum  was  conditioned  to  perform   certain  work  within  a  certain  time,  or 

to  pay  10/.  for  every  week  beyond  that  time.     The  10/.  per  week  was  secured 
*35 


Chap.  2.]  Penalty  or  Stipulated  Damages.  35 

by  the  penalty  of  the  bond  ;  and  to  have  said  that  one  term  of  a  contract,  se- 
cured bv  a  penal  sum,  should  also  be  a  penal  sum,  would  have  been   absurd. 
Indeed,  Lord  Hardwicke,  in  Roy  v.  the  Duke  of  Beaufort,  was  of  opinion,  that  a 
person  who  had  entered  into  a  bond,  with  a  penalty  of  1001.  if  he  poached,  must 
have  paid  the  100Z.  if  he  had  committed  any  act  which  amounted  to  poaching. 
But  suppose    the  Duke  had  taken  a  bond  in  a  penalty  of  100/.,  with   condition 
that  the  obligor  should  not  kill  a  partridge,  or  if  he  did,  that  he  should  pay  5/., 
in  that   case  it  is  most  clear  that  the  5/.  must  have  been  considered  as  liquidat- 
ed damages.     With  respect  to  the  case    of  Hardy  v.   Martin,  I  do   not  under- 
stand why  one  brandy  merchant  who  purchases  the  lease  and  good-will  of  a 
shop  from  another,   may  not  make  it  matter  of  agreement  that  if  the  vendor 
trade  in  brandy   within  a  certain  distance,  he  shall  pay  600/.  ;  and  why  the 
party  violating  such   agreement  should   not  be  bound  to  pay  the    sum   agreed 
for ;  though  if  such  agreement  be  entered  into  in  the  form  of  a  bond,  with  a 
penalty,  it  may,  perhaps,   make  a  difference.     I  much  wish  that  the   principle 
laid  down  by  Lord    Somcrs,  in  Prcc.  in    Chan,  had  been  adhered  to.     Let  us 
then    see  what  this  case  amounts    to.     It    was   contended,    at  the   trial,  that 
the  *last  clause  is  not  in  the  form  of  a  penal   bond.     It  is  thus  :  '  and   lastly, 
it  is  hereby  agreed  that  either  party  failing  to  perform   their  undertaking  shall 
pay  to  the  other  200/.'     Prima  facie  this  certainly  is  contract,  and  not  penalty  ; 
but  we  must  look  to  the  whole  instrument.     In  consideration  of  the  defendant's 
services,  the  plaintiff  undertakes  to  pay  her  1/.  lis.  6fZ.  per  week,  and  also  her 
travelling  expences.     It  would  be  absurd  to  hold,  that  because  the  1/.    \\s.  6d. 
is  a  liquidated  sum,    therefore  the  plaintiff  could  not  be   called  upon  for  more  ; 
and  yet,  that  in  consequence  of  his  non-payment  of  the  defendant's   travelling 
expences,  he  should  be  liable  to  the  whole  sum  of  200/.,  because  those  expen- 
ces are  not   ascertained.     Again,  there  are  many  instances   of  the  defendant's 
misconduct,   which  are  made  the  subjects  of  specific  fines  by  the  laws  of  the 
theatre.     Are  we  then  to  hold,  that  if  the  defendant  happens  to   offend  in  a 
case  which  has  been  so  provided  for  by  those  laws,  she  shall  pay  only  2s.  6d. 
or  5s.  ;  but  if  she  offend  in  a  case  which  has  not  been  so  provided  for,  she  shall 
pay  200/.  1     I  can  find  nothing  in  those   articles  which  can   satisfy   my  mind, 
judicially,  that  the  200/.  is  to  be  paid  in  one  case,  and  not  the   other.     The 
clause  is  general,  and  contains  no  exception.     If  that  be  so,  the  case  of  Fletch- 
er v.  Dyche  is  an  authority  strongly  in  point.     It  therefore  does   appear  to  me 
that  the  true  effect  of  this  agreement   is,  to  give  the  plaintiff  his  option,   either 
to  proceed  upon  the  covenants  toties  quoties,  or,  upon  the  first  breach,  to  pro- 
ceed at  once  for  the  200/.,   out  of  which  he  may  be   satisfied  for  the  damage 
actually  sustained,  and  which  may  stand  as  a  security  for  future  breaches." 

So,  in  the  case  of  Smith  v.  Dickenson,  (u)  which  was  an  action  of  assumpsit 
upon  the  following  agreement :  "  In  consideration  that  the  plaintiff  would  com- 
municate to  the  defendant  the  nature  of  an  invention,  for  which  the  plaintiff 
intended  to  take  out  a  patent,  the  defendant  undertook  that  he  would  not  avail 


(«)  3  Bos.  &  Pul.  630. 

*36 


36  Of  Contracts  with  a  [Part  I. 

himself  or  take  any  advantage  of  such  communication,  under  a  penalty  of  1000/. 
The  Court  were  clearly  of  opinion,  that  the  word  "  penalty"  used  in  the  agree- 
ment, effectually  prevented  them  from  considering  the  sum  mentioned  as  liqui- 
dated damages. 

And  in  the  case  of  Wilbean  v.  Ashton,  (w)  it  was  held,  that  under  an  agree- 
ment for  a  penalty,  the  jury  cannot  give  damages  beyond  it,  nor  ought  they  to 
give  the  party  more  than  a  compensation  for  the  loss  he  proves  he  has  sus- 
tained. 

But,  in  the  case  of  Orr  v.  Churchill,(x)  which  was  an  action  of  debt  on 
bond,  it  appeared  that  the  defendant,  together  with  Walter  Cleland  and 
Daniel  Stewart,  were  jointly  and  severally  bound  in  the  penal  sum  of  44707.  2*. 
2d.  conditioned  as  follows :  "  Whereas  the  above-bounden  *  Walter  Cleland 
hath  received  from  the  above-named  John  Orr  6017  star  pagodas,  for  which  he 
has  given  to  the  said  John  Orr  sets  of  his  own  private  bills,  upon  Messrs.  Baillie, 
Pocock,  and  Co.,  payable  to  the  order  of  the  said  John  Orr,  in  manner  herein- 
after mentioned  ;  that  is  to  say,  one  set  in  triplicate,  dated  Calcutta,  January 
29th,  1787,  for2044Z.  3s.  4d.,  payable  365  days  after  sight  thereof ;  and  the 
other  set  in  triplicate,  bearing  even  date  with  these  presents,  for  190/.  18s.  9d., 
payable  lour  months  after  sight  thereof;  and  to  secure  the  due  acceptance  and 
payment  of  such  bills  respectively,  they,  the  said  Henry  Churchill  and  Daniel 
Stewart,  have  proposed  and  undertaken  to  become  bound,  together  with  the 
said  Walter  Cleland ;  and  that  in  the  event  of  the  said  bills,  or  either  of  them, 
being  protested  for  non-acceptance  and  non-payment,  that  they,  the  said  Wal- 
ter Cleland,  Henry  Churchill,  and  Daniel  Stewart,  or  one  of  them,  shall  and 
will,  upon  producing  to  them  or  either  of  them  such  bill,  with  its  protest,  well 
and  truly  pay  to  the  said  John  Orr,  or  his  order,  if  demanded  in  England, 
the  full  amount  of  such  bill  or  bills  which  shall  be  so  protested,  together  with 
interest  thereupon,  of  5/.  per  centum  per  annum,  from  the  day  of  the  date  or 
dates  of  such  bill  or  bills,  up  to  the  day  of  such  payment,  by  way  of  penalty." 

The  Court  held,  that  the  plaintiff  was  entitled  to  recover  no  more  than  the 
amount  of  the  bills,  with  interest  from  the  time  of  their  becoming  due.  And  Lord 
Loughborough  Ch.  J.  said,  "  I  do  not  go  on  the  denomination  given  by  the  in- 
strument ;  for  whatever  that  may  be  in  this  case,  that  could  not,  by  any  possi- 
bility, have  been  an  agreement  for  liquidated  damages  ;  which  can  only  be 
where  there  is  an  engagement  for  the  performance  of  certain  acts,  the  not  do- 
ing of  which  would  be  an  injury  to  one  of  the  parties,  or  to  guard  against  the 
performance  of  acts,  which,  if  done,  would  also  be  injurious.  In  such  case  an 
estimate  of  the  damages  may  be  made  by  a  jury,  or  by  a  previous  agreement 
between  the  parties,  who  may  foresee  the  consequences  of  a  breach  of  the  en- 
gagement, and  stipulate  accordingly.  But  where  the  question  is  concerning 
the  non-payment  of  money  in  circumstances  like  the  present,  the  law  having 
by  positive  rules,  fixed  the  rate  of  interest,  has  bounded  the  measure  of  damages  ; 
otherwise  the  law  might  be  eluded  by  the  parties.     It  may  often  indeed,  happen, 

(to)  1  Campb.  Rep.  78.  (ar)  1  H.  Bl.  227. 

*37 


Chap.  2-]         Penalty  or  Stipulated  Damages.  37 

that  the  damages  sustained  by  a  party  contracting,  by  the  non-payment  of  mo- 
ney at  the  time  agreed  on,  may,  by  the  particular  arrangement  of  his  affairs,  be 
greater  than  the  compensation  recovered  by  computing  the  interest ;  but  where 
money  has  a  real  rate  of  interest  and  value,  the  other  party  is  not  to  be  com- 
pelled to  pay  more  than  the  law  has  declared  to  be  such  rate  and  value." 

In  the  case  of  a  penalty,  though  the  plaintiff  has  his  election  to  proceed  ei- 
ther for  the  recovery  of  the  penalty,  or  for  general  damages  for  *breach  of  the 
agreement,  yet  having  once  made  his  election,  and  recovered  the  penalty,  he  is 
bound  by  it,  and  cannot  bring  any  action  to  recover  further  satisfaction,  (y)  (35) 
But  a  party  cannot,  by  tendering  the  penalty,  or  stipulated  sum,  be  let  off  from 
a  specific  performance  of  an  agreement.  (36)  Thus,  in  the  case  of  Howard  v. 
Hopkins,  iz)  where  it  appeared  that  articles  for  the  purchase  of  an  estate  had 
been  entered  into,  with  a  proviso,  that  if  either  side  should  break  the  agree- 
ment, he  should  pay  the  other  100?.  ;  and  one  ground  of  argument,  on  behalf 
of  the  vendor,  against  a  bill  for  a  specific  performance,  was,  that  it  was  the 
intention  of  the  parties,  that  upon  payment  of  100Z.  by  either  of  them,  the 
agreement  should  be  absolutely  void.  Lord  Chancellor  Hardwicke  said,  "  As 
to  the  defence  of  the  stipulated  sum,  I  cannot  consider  that  as  a  ground  to  let 
off  either  party  when  they  please,  it  being  no  more  than  a  common  case  with 
a  penalty,  which  might  be  inserted  by  the  vendee  in  order  to  be  paid  for  his 
trouble  of  viewing  and  measuring  the  estate,  &c.  supposing  the  defendant  should 
not  be  able  to  make  out  a  title.  In  all  these  cases,  where  penalties  are  in- 
serted in  a  case  of  non-performance,  this  has  never  been  held  to  release  the 
parties  from  their  agreement,  but  they  must  perform  it  notwithstanding." 

3.   OF    THE  CANCELLING,  RESCINDING,  OR  PUTTING  AN  END 

TO  A  CONTRACT. 

A  contract  may,  by  the  consent  and  agreement  of  all  parties  interested,  be 
cancelled  or  rescinded  either  in  the  whole  or  in  part,  provided  it  be  done  be- 
fore a  breach  has  been  committed  ;  but  if  done  after  the  contract  has  been  bro- 
ken, such  consent  is  not  legally  binding  without  a  release  or  agreement  under 
seal.  If  a  contract  is  subject  to  a  condition,  o  f  which  one  of  the  parties 
alone  can  take  advantage,  such  party  may  rescind  it  without  the  consent  of 
the  other  :  as,  for  instance,  upon  a  sale  of  goods  conditioned  that  they  may  be 
returned  if  the  seller  does  not  like  them,  &c,  the  latter  has  the  option  of  de- 
termining the  contract  by  returning  the  goods  within  a  reasonable  time,  (a)  So, 
a  contract  may  be  put  an  end  to,  by  the  wrongful  act  or  default  of  one  of  the 
contracting  parties  ;  as,   where  the  performance  was  made  to   depend  upon  a 

(y)  Bird  v.  Randall,  1  Bl.  Rep.   375.  387.  (a)   Towers  v.  Barrett,  1  T.  R.  135. 

(2)  2  Atk.  371. 


(35)  See  the  cases  referred  to  in  note  34. 

(36)  See  Gray  v.  Crosby,  19  J.  R.  219. 

#38 


38  Of  the  Cancelling  and  Rescinding  [Parti. 

particular  mode  of  measuring  a  certain  quantity  of  coal  to  be  supplied  by  one 
party  from  a  scam  or  pit,  and  the  other  party,  by  some  act  done  by  himself,  thereby 
wholly  prevented  that  mode  of  measurement,  and  rendered  such  an  estimate  whol- 
ly impracticable  ;  it  was  held,  that  the  former  was  discharged,  and  the  contract 
vacated,  (b)  /  So,  where  the  performance  of  a  contract  is  made  to  depend  on 
something  to  be  *done  or  furnished  by  one  of  the  parties,  but  which  is  neglected 
to  be  done,  either  within  the  time  specified,  or,  if  no  time  is  expressed,  within  a 
reasonable  time ;  the  other  party  may  abandon  the  contract  altogether,  (c) 
So,  where  there  is  a  partial  failure  in  the  consideration  upon  a  sale  of  goods  by 
sample,  as  where  the  goods  do  not  correspond  with  the  sample,  they  may  be  re- 
turned to  the  vendor,  or  notice  thereof  may  be  given  to  him  to  take  them  away 
if  they  be  bulky.  So,  where  a  contract  of  sale  is  concluded  by  the  payment  of 
earnest,  and  the  purchaser,  on  the  goods  being  tendered,  refuses  to  accept  them, 
but  requests  the  seller  to  sell  them  for  him,  which  he  agrees  to  do,  this  amounts  to 
a  waiver  of  the  original  contract.  But  if  no  such  request  be  made,  and  the  seller 
takes  back  the  goods,  he  may  avoid  the  contract,  and  sell  them  to  another  person 
after  the  lapse  of  a  reasonable  time,  and  request  made  to  the  vendor  to  accept 
ihem.{d)  In  all  cases  where  a  party  has  the  power  of  rescinding  a  contract, 
and  is  desirous  of  doing  so,  he  must  exercise  that  power  within  a  reasonable  time. 
But  if  a  specific  time  is  given,  as  upon  a  sale  of  a  horse,  where  a  month's  trial 
was  allowed,  the  vendee  may  rescind  the  contract  at  the  end  of  the  month, 
though  in  the  interim  he  was  desired  by  the  vendor  to  return  the  horse  on  his 
saying  he  disliked  the  price,  (e)  So,  it  has  been  held,  that,  if  after  a  contract 
for  the  sale  of  goods  made  in  the  city  of  London  by  a  broker,  and  where  the 
goods  are  to  be  paid  for  by  a  bill  of  exchange,  the  seller  is  dissatisfied  with  the 
credit  of  the  buyer,  he  has  a  right  to  determine  and  put  an  end  to  the  contract 
within  a  reasonable  time.  (/)  \  In  order,  however,  to  rescind  a  contract,  and 
treat  it  as  wholly  determined, '  both  parties  must  be  placed  in  the  same  situation 
as  they  were  before  the  contract  was  made  ;<  and  therefore  where  a  party 
wishing  to  put  an  end  to  the  contract  has  derived  any  benefit  from  it  to  the  de- 
triment of  the  other  party,  he  cannot  rescind  or  treat  it  as  wholly  determined.(o-) 
After  a  contract  has  been  rescinded  by  one  party,  in  consequence  of  the  total 
non-performance  of  it  by  the  other  party,  he  may  recover  back  any  money  which 
he  has  paid  under  it,  provided  he  has  done  nothing  which  can  be  considered  as 
an  execution  of  his  part  of  the  contract.  And  if  money  be  paid  on  a  consider- 
ation which  happens  to  fail,  it  may  be  recovered  back  as  money  had  and  re- 
ceived. (A)  (37) 

(b)  2  Taunt.  Rep.  150.  (/)  Hodgson  v.  Davies,  2  Campb.  530. 

(c)  2  Taunt.  Rep.  325.  n.  a.  (g")   5  East  Rep.  449. 

(d)  7  East  Rep.  571.     But  see  3  Campb.  (ft)    Vid.  the  cases  on  this  subject,  tit. 
426.  Money  had  and  received,  Part  ii. 

(0   1  New.  Rep.  257. 

(37)  All  executory  contracts  may  be  rescinded  by  the  mutual  agreement  of  the  parties, 
/o  Mass.  Rcp.78.     But  a  contract  cannot  be  dissolved  by  the  act  of  one  party  alone,  unless 
such  right  be  secured  to  him  by  the  terms  of  the  agreement.     Sullivan  v.  Massachusetts 
*3U 


Chap.  2.]      Of  the  Performance  of  a  Contract.  %0 


*4.  OF    THE  PERFORMANCE  OF  A  CONTRACT  OR  AGREEMENT. 

In  this  part  of  the  work  it  will  only  be  necessary  to  bring  to  the  reader's 
attention  some  of  the  leading  principles  laid  down  for  the  due  observance  of 
a  contract.  On  this  subject,  it  is  necessary  in  all  cases  to  consider  first, 
whether  the  contract  or  agreement  contains  mutual  and  independant  agree- 
ments ;  for  if  it  does,  then  each  party  is  entitled  to  claim  from  the  other  a 
performance  of  the  contract,  or  to  recover  damages  for  the  non-performance  ; 
and  it  will  be  no  legal  ground  of  excuse,  to  allege  that  the  party  claiming  has 
himself  been  guilty  of  a  breach  of  the  contract.  Or  secondly,  whether  the 
acts  to  be  done  on  one  side  are  to  precede  the  acts  to  be  performed  on  the 
other,  and  are,  what  is  technically  called,  conditions  precedent  and  dependent : 
if  they  are  precedent  conditions,  they  must  be  first  performed.  Thirdly, 
whether  or  not  the  agreements  be  mutual,  and  the  acts  agreed  to  be  done  are 
to  be  performed  at  the  same  time  :  if  in  the  affirmative,  then  if  one  of  the 
parties  be  ready  at  the  agreed  time,  and  offers  to  perform  his  part  of  the  con- 
tract, and  the  other  is  not  ready,  he  may  maintain  an  action  for  such  default, 
although  it  may  be  doubtful  which  of  them  is  obliged  to  perform  the  first  act. 
In  mutual  agreements  where  the  time  of  performance  is  clearly  expressed, 
as  if  a  horse  is  sold  on  the  1st  of  May,  to  be  paid  for  on  the  first  of  June,  the 
parties  are  of  course  concluded  by  the  terms  so  expressed.  But  where  the 
dependence  or  independence  of  the  respective  engagements  is  only  to  be  collect- 
ed from  the  evident  sense  and  meaning  of  the  parties,  the  rule  is,  that  however 
the  covenants  or  promises  may  be  transposed,  their  precedency  must  depend 
upon  the  order  of  time  in  which  the  intent  of  the  transaction  requires  their 
performance,  (i)  The  learned  editor  of  Pothicr  on  Contracts,  (k)  in  considering 
these  general  rules,  has  illustrated  them  by  the  following  familiar  examples  : 
first,  a  landlord    and    tenant   enter  into   reciprocal    engagements,    the    tenant 


(t)  Vid.  Doug.  Rep.-690,  691.  (/„•)  Vol.  2.  p.  41. 


Mutual  Fire  Insurance  Company,  2  Mass.   Rep.  326.     An  agreement  rescinded  in  part  shall 
be  deemed  as  rescinded  in  toto.    Raymond  v.  Bcarnard,  12  J.  R.  274. 

As  a  general  rule,  if  one  party  be  incapable  of  performing  his  agreement,  the  other  party 
•will  be  discharged  :  Thus,  if  at  the  time  of  a  contract  for  the  sale  of  land,  there  be  a  lease 
outstanding,  which  was  unknown  to  the  vendee,  he  may  rescind  the  contract,  the  vendor 
not  being  in  a  situation  to  convey  a  perfect  title.  Tucker  v.  Woods,  12  J.  R.  190.  See 
Van  Benthuysen  v.  Crapser,  8  J.  R.  198.  2d.  edit.  And  in  such  case,  if  the  vendee  has 
paid  a  part  of  the  purchase  money,  he  may  not  only  disaffirm  the  contract  but  may  recover 
back  the  money  so  paid.  Judsonv.  Wass,  11  J.  R.  525.  But  where  the  purchaser  pays 
part  of  the  consideration,  on  a  parol  contract,  for  the  sale  of  land,  there  being  no  fault  on  the 
part  of  the  vendor,  the  vendee  cannot  maintain  an  action  to  recover  it  back.  Dowdle  v. 
Camp,  12  J.  R.  451.  If  a  person  agree  to  perform  an  act,  which  was  possible  and  legal  at 
the  time  when  the  contract  was  made,  and  before  the  time  of  performance,  or  a  breach  of  the 
contract,  the  act  become  impossible  by  the  act  of  God,  or  illegal  by  an  ordinance  of  the  gov- 
ernment, whether  such  ordinance  be  constitutional  or  unconstitutional,  the  obligation  to 
perform  the  contract  is  discharged  ;  or  if  the  ordinance  be  temporary,  such  obligation  is 
suspended  during  its  continuance.  Baylies  v.  PheUyplace,  7  Mass.  Rep.  325.  Impossibilih, 
alone  can  excuse  the  performance  of  a  contract  ;  difficulty  is  not  sufficient.  Hiding  v. 
Craig,   Addia.  342.  5 

6  #40 


40  Of  the  Performance  of  a  Contract.  [Part  I. 

agrees  to  pay  the  rent,  to  plant  a  certain  number  of  trees,  to  repair  the  fences  ; 
the  landlord  agrees  to  repair  the  house,  to  erect  a  barn,  to  pay  the  taxes. 
If  the  tenant  brings  an  action  against  the  landlord  for  not  building  the  barn, 
it  is  no  answer  that  the  tenant  has  not  planted  the  trees.  If  the  landlord 
brings  an  action  for  the  rent,  the  tenant  cannot  insist  that  the  house  is  out  of 
repair.  Secondly,  If  a  carrier  engages  to  convey  a  bale  of  goods  for  a  certain 
sum,  he  cannot  demand  the  money  until  he  has  brought  the  goods  to  the 
place  appointed.  Thirdly,  if  a  horse  is  sold  for  20/.  to  be  paid  on  delivery,  one 
*party  cannot  demand  the  horse  without  paying  the  money,  nor  the  other  the 
money  without  delivering  the  horse.  And  it  is  observed  by  Mr.  Serjeant  Wil- 
liams, in  a  note  to  the  case  of  Pordage  v.  Cole,(k)  "  that  almost  all  the  old 
cases,  and  many  of  the  modern  ones  on  this  subject,  are  decided  upon  distinc- 
tions so  nice  and  technical,  that  it  is  very  difficult,  if  not  impracticable,  to  de- 
duce from  them  any  certain  rule  or  principle  by  which  it  can  be  ascertained 
what  covenants  are  independent,  and  what  dependent.  Thus,  if  A.  covenant 
with  B.  to  serve  him  for  a  year,  and  B.  covenant  with  A.  to  pay  him  10/. ;  it 
is  held,  that  these  are  independent  covenants;  and  A.  may  maintain  an  action 
against  B.  for  the  money  before  any  service,  but  if  B.  had  covenanted  to  pay 
him  10/.  for  his  services,  these  words  make  the  service  a  condition  precedent; 
and  A.  cannot  enforce  payment  of  the  money  until  he  has  performed  the  ser- 
vice. So,  where  A.  covenants  with  B.  to  marry  his  daughter,  and  B.  covenants 
to  convey  an  estate  to  A.  and  the  daughter  in  special  tail,  it  is  said,  that  though 

A.  marry  another  woman,  or  the  daughter  another  man,  still  A.  may  have  an 
action  against  B.  on  the  covenant ;  but  if  B.  had  covenanted  to  convey  the 
estate  for  the  cause  aforesaid,  the  marriage  is  a  condition  precedent,  and  no  ac- 
tion will  lie  until  it  be  solemnized.  (/)  Also  where  A.  in  consideration  of  10/. 
promised  to  deliver  to  B.  all  the  books  of  the  law,  it  has  been  said  that  B.  may 
bring  an  action  against  A.  for  the  books  before  any  payment ;  but  if  A.  in  con- 
sideration that  B.  will  pay  him  10/.  will  deliver  to  him  all  the  books  of  the  law, 

B.  cannot  bring  an  action  for  the  books  before  he  has  paid  the  money.(»?)  So, 
where  B.  covenanted  with  C,  his  copyholder,  to  assure  to  him  and  his  heirs 
the  freehold  and  inheritance  of  his  copyhold,  and  C.  in  consideration  of  the  same 
performed  covenanted  to  pay  such  a  sum,  it  was  adjudged  that  this  was  a  con- 
dition precedent,  and  B.  must  make  the  assurance  before  he  is  entitled  to  the 
money ;  but  if  the  words  had  been  in  consideration  of  the  said  covenant  to  be 
performed,  B.  might  bring  an  action  for  the  money  before  he  made  the  assur- 
ance. (?i)  And  lastly,  where  articles  of  agreement  were  made  between  A.  and 
B.,  and  a  covenant  by  A.,  that  for  the  consideration  thereafter  expressed,  he 
should  convey  certain  lands  to  B.  in  fee,  and  B.,  on  his  part,  for  the  considera- 
tion aforesaid,  covenanted  to  pay  a  sum  of  money  to  A.,  it  was  held,  that  these 
were   independent  covenants,  and  A.  might  bring  an  action  for  the  money,  be- 


(k)   1  Saimd.  320.  n.  4.  (m)   1  Rol.  Rep.  125. 

(/)  Bio.  Covenant  22.     12  Mod.  460.  Hob.        (»)  3  Leon.  219. 
106. 

*41 


Chap,  2.]       Of  the  Performance  of  a  Contract.  41 

fore  any  conveyance  of  the  lands. (o)/\The  general  rule  to  be  deduced  from  all 
the  cases  on  this  subject  seems  to  be,  that  where  there  are  several  covenants, 
promises,  or  agreements,  which  are  independent  of  each  other,  one  party  may 
bring  an  action  against  the  *other  for  a  breach  of  his  covenants,  &c.,  without 
shewing  a  performance  of  the  covenants  made  on  the  part  of  the  plaintiff;  and 
it  is  no  excuse  for  the  defendant  to  allege  in  his  plea  a  breach  of  the  covenants 
on  the  part  of  the  plaintiff.  But  where  the  covenants,  &c.  are  dependent,  it  is 
necessary  for  the  plaintiff  to  aver  and  prove  a  performance  of  the  covenants, 
&c.  on  his  part,  to  entitle  him  to  an  action  for  the  breach  of  the  covenants  on 
the  part  of  the  defendant.  The  difficulty  lies  in  the  application  of  this  rule  to 
the  particular  case.  It  is  justly  observed,  that  covenants,  &c.  are  to  be  con- 
strued to  be  either  dependent  or  independent  of  each  other,  according  to  the 
intention  and  meaning  of  the  parties,  and  the  good  sense  of  the  case,  and  tech- 
nical words  should  give  way  to  such  intention."(p)  (38)  And  the  learned 
editor  further  observes,  "  that  in  order  to  discover  that  intention,  a  few  rules 
Avill  be  found  useful  for  that  purpose  ;  and  1st,  if  a  day  be  appointed  for  pay- 
ment of  money,  or  part  of  it,  or  for  doing  any  other  act,  and  the  day  is  to  happen, 
or  may  happen  before  the  thing  which  is  the  consideration  of  the  money,  or  other 
act  is  to  be  performed,  an  action  may  be  brought  for  the  money,  or  for  not  do- 
ing such  other  act  before  performance  ;  for  it  appears  that  the  party  relied  upon 
his  remedy,  and  did  not  intend  to  make  the  performance  a  condition  precedent. 
And  so  it  is  where  no  time  is  fixed  for  performance  of  that  which  is  the  con- 
sideration of  the  money  or  other  act.(^)  But  2d,  when  a  day  is  appointed  for 
the  payment  of  money,  &c,  and  the  day  is  to  happen  after  the  thing  which  is 
the  consideration  of  the  money,  &e.  is  to  be  performed,  no  action  can  be  main- 
tained for  the  money,  &c.  before  performance.(r)  3d,  Where  a  covenant  goes 
only  to  part  of  the  consideration  on  both  sides,  and  a  breach  of  such  covenant 
may  be  paid  for  in  damages,  it  is  an  independent  covenant,  and  an  action  may 
be  maintained  for  a  breach  of  the  covenant  on  the  part  of  the  defendant,  with- 
out shewing  performance.  As  where  A.  by  deed  conveyed  to  B.  the  equity  of 
redemption  of  a  plantation  in  the  West  Indies,  together  with  the  stock  of  negroes 
upon  it,  in  consideration  of  600/.,  and  an  annuity  of  160Z.  for  life,  and  cove- 
nanted that  he  had  a  good  title  to  the  plantation,  was  lawfully  possessed  of  the 
negroes,  and  B.  should  quietly  enjoy.  And  B.  covenanted  that  A.  well  and  truly 
performing  all  and  every  thing  therein  contained  on  his  part  to  be  performed,  he 
would  pay  the  annuity.  In  an  action  by  A.  against  B.  on  this  covenant,  the 
breach  assigned  was  the  nonpayment  of  the  annuity  ;  plea,  that  A.  was  not  at  the 


(o)  1    Rol.  Abr.415.pl.  8.  1  Ld.  Raym.  (q)  Dvcr.  7C.  a.  1  Saund.  320.  1  Ld.Raym. 

665,  6.   1  Lutw.  251,  2.  665.  2  H.  Bla.  389.  6  T.  R.  572. 

(p)   1  T.  R.  645.  6  T.  R.  668.  571.  7  T.  (r)    1    iSalk.    171.  12  Mod.  462.  1  Lutw. 

R.   130.  251. 


(38)  Whether  a  condition  be  dependent  or  independent,  will  depend  upon  the  good  sense 
and  plain  understanding  of  the  contract,  and  not  upon  the  technical  meaning  0f  the  words 
used.     Barruso  v.  Madan,  2  J.  R.  145.     See  Johnson  v.  Reed,  9  Mass.  Rep.  78. 

*42 


42  Of  the  Performance  of  a  Contract.         [Parti. 

time   legally  possessed  of  the  negroes  on  the  plantation,  and  so  had  not  a  good 
title  to  convey.     The  Court  of  King's  Bench  held  the  plea  to  be  ill,  and  added, 
that  if  such  plea  were  to  be  allowed,  any  one  negro,  not  being  the  property  of  A., 
*would  bar  the  action,  (s)     The  whole  consideration  of  the  covenant  on  the  part 
of  B.    (the  purchaser)  to  pay  the  money,  was  the  conveyance  by  A.,  the  sel- 
ler, to  him  of  the  equity  of  redemption  of  the  plantation,  and  also  the  stock  of 
negroes  upon  it.     The  excuse  for  nonpayment  of  the  money  was,  that  A.  had 
broke  his  covenant  as    to  part  of  the  consideration,  namely,  the  stock  of  ne- 
groes.    But  as  it  appeared  that  A.  had  conveyed  the  equity   of  redemption  to 
B.,  and  so  had,  in  part,  executed  his  covenant,  it  would  be  unreasonable  that 
B.  should  keep  the  plantation   and  yet  refuse  payment,  because  A.   had  not  a 
good  title  to  the  negroes.(i)     Besides,  the   damages    sustained  by  the  parties 
would  be  unequal,  if  A.'s  covenant   was  held  to  be  a  condition  precedent ;(?/) 
for  A.  on  the  one  side  would  lose  the  consideration  money  of  "the  sale,  but  B.'s 
damage  on  the  other  might  consist,  perhaps,  in  the  loss  only  of  a  few  negroes. 
So,  where   it  was  agreed  between  C.  and  D.  that   in  consideration  of  500/.  C. 
should  teach  D.  the  art   of  bleaching  materials  for  making  paper,  and  permit 
him,  during  the  continuance  of  a  patent  which  C.  had  obtained  for  that  pur- 
pose, to  bleach  such  materials  according  to  the  specification ;  and  C.  in   con- 
sideration of  the  sum  of  250/.  paid,  and  of  the  further  sum  of  250/.  to  be  paid 
by  D.  to  him,  covenanted   that  he   would  with  all   possible    expedition  teach 
D.  the  method  of  bleaching  such  materials  ;  and  D.  covenanted  that  he  would 
on  or  before  the  24th  February  1794,  or  sooner,  in  case  C.  should  before  that 
lime  have  taught  him  the  bleaching  of  such  materials,  pay  to  C.  the  further 
sum  of  250/.     In  covenant  by  C.  against  D.  the  breach  assigned  was  the  non- 
payment of  the  250/.     Demurrer,  that  it  was  not  averred  that  C.  had  taught 
D.   the  method  of  bleaching  such   materials  ;  but   it  was  held  by  the  Court, 
that  the  whole  consideration  of  the  agreement  being,  that  C.  should  permit  D.  to 
bleach  materials,  as  well  as  teach  him  the  method  of  doing   it,  the  covenant  by 
C.  to  teach  formed  but  part  of  the  consideration,  for  a  breach  of  which  D. 
might  recover  a  recompence  in  damages  :  and  C.  having  in  part  executed  his 
agreement  by  transferring  to  D.  a  right  to  exercise  the  patent,  he  ought  not  to 
keep  that  right  without  paying  the  remainder  of  the  consideration,  because  he 
may  have  sustained  some  damage  by  D.'s  not  having  instructed  him  ;  and  the 
demurrer  was  over-ruled.(u)     4th.  But  where  the  mutual  covenants  go  to  the 
whole  consideration  on  both  sides,  they  are  mutual  conditions,  and  performance 
must  be  averred. (w)     5th.  Where   two  acts   are  to  be  done  at  the  same  time, 
as  where  A.  covenants  to  convey  an  estate  to  B.  on  such  a  day,  and  in  consid- 
eration thereof  B.   covenants   to  pay  A.  a  sum  of  money  on   the   same  day, 
neither  can  maintain  an  action  without  shewing  performance  of  or  an  offer  to 

(s)  Boone  v.  Eyre,  1  II.  Bl.  273.  n.  a.  («)  6  T.  R.  570. 

(0  Per  Jshhursl  J.,  6  T.  R.  573.  (w)   1  Vcntr.  147.     1  H.  Bl.  270. 

(h)   1  H.  Bl.  279. 

*43 


Chap.  2.]     Of  the  Performance  of  a  Contract.  43 

perform,  his  part,  though  it  is  not  certain  which  of  them  is  "obliged  to  do  the  first 
act ;  and  this  particularly  applies  to  all  cases  of  sale." (39) 


(39)  Where  A.  agreed  to  complete  a  certain  piece  of  road  on  or  before  a  certain  day  ; 
and  B.  covenanted  to  pay  him  for  the  whole  labor,  6,000   dollars,  to  be  paid  by  instalments, 
os  the  work  progressed ;  it  was  held,  that  A.  could  not  maintain  an  action  for  the  whole  con- 
sideration, without  averring  and  proving  a  performance  of  the  whole  work  ;  or  if  the  action 
be  brought  for  a  rateable  part  of  the  money,  the  plaintiff  must  shew  a  rateable  perform- 
ance.    Cunningham  v.  Morrell,    10  J.  R.203.     By  this  decision,  the  cases  of  Seers  v.  Fowler, 
2  J.  R.  272.    and  Havens  v.  Bush,  id.  387,   are  overruled.     So,  on  a  contract  for  the  delivery 
of  stock,  the  delivery  and  payment  of  the  money  are  dependent  covenants  ;  and  theplaintiif 
must  aver  a  performance,  or  an  offer  to  perform,   otherwise  he  cannot  sustain  an  action. 
Green  v.  Reynolds,  2  J.  R.  209.  Per  Kent,  Ch.  J.     So,  where  G.  covenants  to   execute  and 
deliver  to  R.,  on  a  certain  day,  a  deed  of  land ;  and  R.  covenants  to  pay   G.,  on  the  same 
day,  a  sum  of  money ;  held,  that  these  covenants  are  dependent,  and  that  the  delivery  or 
tender  of  the  deed,  is  a  condition  precedent  to  the  payment  of  the  money.     Green  v.  Rey- 
nolds, 2  J.  R.  207.  S.  P.  Jones  v.  Gardner,  10  J.  R.  266.  Gazley  v.  Price,  16  J.  R.  267.     See 
Hardin  v.  Kretsinger,  17  J.  R.293.     Rob  v.  Montgomery,  20  J.  R.   15.     Reab  v.  Moor,  19  J. 
R.  337.     So,  where  the  trustees  of  a  church  executed  a  bond,  with  condition  to  furnish  F. 
with  a  dwelling  house,  &c.  if  necessity  required  ;  it  was  held,  that  the  plaintiff  was  bound  to 
show  the  existence  of  a  necessity  arising  from  his  inability,  from  poverty,  to  procure  a  house, 
as  a  condition  precedent  to  a  right  of  recovery  on  the  bond.     Ferris  v.  Pur dy,  10  J.  R.  359. 
See  Porter  v.  Rose,  12  J.  R.  209. 


44     Of  the  Stamping  of  Contracts  and  Agreements.  [Part  I. 


*CHAPTEU  III. 


OF  THE  STAMPING  OF  CONTRACTS  AND  AGREEMENTS. 


One  source  of  the  revenue  of  this  country  arises  from  the  imposition  of 
stamp  duties  payable  upon  contracts  and  agreements,  bills  of  exchange  and 
promissory  notes,  law  proceedings,  and  a  multiplicity  of  other  written  instru- 
ments.— These  duties  having  been  so  much  varied  and  altered  at  different 
periods,  according  to  the  exigencies  of  the  state,  became  extremely  complicat- 
ed ;  and  it  being  difficult  to  ascertain  the  precise  duty  payable  on  each  particu- 
lar instrument,  the  legislature  deemed  it  expedient  to  consolidate  the  stamp  du- 
ties under  one  general  act  of  parliament ;  and  accordingly,  the  statute  44  Geo. 
3.  c.  98.  was  passed,  the  preamble  of  which  recites,  "  whereas  the  several 
rates  and  duties  upon  stamped  vellum,  parchment,  and  paper,  and  upon  other 
articles  and  things  under  the  care  of  the  commissioners  for  managing  the  said 
duties,  are  become  very  numerous,  intricate,  and  complicated,  and  it  will  tend 
to  give  facility  to  business,  and  contribute  materially  to  the  public  benefit,  to 
consolidate  and  simplify  the  same ;"  and  the  several  duties  were  by  that  act  all 
consolidated  under  different  schedules,  and  they  took  effect  from  and  after  the 
10th  October  1804.  But  the  duties  imposed  by  that  statute  were  afterwards 
varied  and  altered  by  several  other  acts  of  parliament ;  and  another  general 
stamp  act,  viz.  the  55  Geo.  3.  c.  184.  passed,  and  this  took  effect  on  the  1st 
Sept.  1815,  and  it  is  now  in  force  ;  and  such  of  the  duties  imposed  by  it,  so 
far  as  they  relate  to  the  subject-matter  of  the  present  work,  are  contained  in 
schedule,  Part  the  First,  and  are  as  follow,  viz. 

Agreement,  or  any  minute  or  memorandum  of  an  agreement,  made  in  Eng- 
land under  hand  only,  or  made  in  Scotland  without  any  clause  of  registration, 
(and  not  otherwise  charged  in  this  schedule,  nor  expressly  exempted  from  all 
stamp  duty,)  where  the  matter  thereof  shall  be  of  the  value  of  201.  or  upwards, 
whether  the  same  shall  be  only  evidence  of  a  contract,  or  obligatory  upon  the 
parties  from  its  being  a  written  instrument,  together  with  every  schedule,  receipt, 
or  other  matter  put  or  endorsed  thereon  or  annexed  thereto  ; 

*44 


Chap.  3.]  Of  the  Stamping  of  Contracts  a?id  Agreements.  45 

Where  the  same  shall  not  contain  more  than  1080  words,  being  £,.  s.  d. 
the  amount  of  fifteen  common  law  folios,  or  sheets  of  seventy- 
two  words  each) 100 

And  where  the  same  shall  contain  more  than  1080  words       -     -    -     1   15  0 
*And  for  every  entire  quantity  of  1080  words  contained  therein, 
over  and  above  the  first  1080  words,  a  further  progressive  duty 

of 15     0 

Provided  always,  that  where  divers  letters  shall  be  offered  in  evidence  to  prove 
any  agreement  between  the  parties  who  shall  have  written  such  letters,  it  shall 
be  sufficient  if  any  one  of  such  letters  shall  be  stamped  with  a  duty  of  \l.  15s. 
although  the  same  shall  in  the  whole  contain  twice  the  number  of  1080  words 
or  upwards. 

Exemption  from  the  preceding  and  all  other  Stamp  Duties. 

Memorandum  or  agreement  for  granting  a  lease  or  tack  at  rack-rents  of  any 
messuage,  land,  or  tenement,  under  the  yearly  rent  of  51. 

Memorandum  or  agreement  for  the  hire  of  any  labourer,  artificer,  manufactur- 
er, or  menial  servant. 

Memorandum,  letter,  or  agreement,  made  for  or  relating  to  the  sale  of  any 
goods,  wares,  or  merchandize. 

Memorandum  or  agreement  made  between  the  master  and  mariners  of  any 
ship  or  vessel,  for  wages,  on  any  voyage  coastwise  from  port  to  port  in  Great 
Britain. 

Letters  containing  any  agreement  (not  before  exempted)  in  respect  of  any 
merchandize,  or  evidence  of  such  an  agreement,  which  shall  pass  by  the  post, 
between  merchants  or  other  persons  carrying  on  trade  or  commerce  in  Great 
Britain,  and  residing  and  actually  being  at  the  time  of  sending  such  letters  at 
the  distance  of  fifty  miles  from  each  other. 

By  section  X.  of  this  statute  it  is  declared,  "  that  from  and  after  the  passing 
of  this  act,  all  instruments  for  or  upon  which  any  stamp  or  stamps  shall  have  been 
used  of  an  improper  denomination  or  rate  of  duty,  but  of  equal  or  greater  val- 
ue in  the  whole  with  or  than  the  stamp  or  stamps  which  ought  regularly  to  have 
been  used  thereon,  shall  nevertheless  be  deemed  valid  and  effectual  in  the  law  ; 
except  in  cases  where  the  stamp  or  stamps  used  on  such  instruments  shall  have 
been  specially  appropriated  to  any  other  instrument,  by  having  its  name  on  the 
face  thereof." 

A  written  instrument,  which  requires  a  stamp,  cannot  be  admitted  in  evidence, 
unless  it  be  duly  stamped  ;  and  no  parol  evidence  will  be  received  of  its  con- 
tents. If,  therefore,  the  instrument  produced  is  the  only  legal  proof  of  the 
transaction,  and  that  cannot  be  admitted  for  want  of  a  proper  stamp,  the  trans- 
action cannot  be  proved  at  all ;  as,  in  action  for  use  and  occupation,  if  it  ap- 
pears that  the  defendant  held  under  a  written  agreement,  which  for  want  of  a 
stamp  cannot  be  received,  the  plaintiff  will  not  be  allowed  to  go  into  general  ev- 
idence ;  for  the  agreement  *is  the  best  evidence  of  the  nature  of  the  occupation. 

*45  *46 


46    Of  the  Stamping  of  Contracts  and  Agreements.   [Part  I. 

But  it  may  happen,  in  a  variety  of  cases,  that  the  transaction  is  capable  of  be- 
ing proved  by  other  evidence  besides  the  written  instrument ;  and  the  objection 
arising  from  the  stamp  acts  may  be  avoided  by  resorting  to  that  other  species 
of  proof,  (a) 

A  lost  agreement,  however,  not  having  been  stamped,  precludes  parol  evi- 
dence, (b).  And  an  agreement  requiring  a  stamp,  though  coming  out  of  the 
possession  of  an  adverse  party  under  a  notice  to  produce,  cannot  be  read  in  evi- 
dence without  being  properly  stamped ;  (c)  for  the  party  requiring  the  produc- 
tion may,  by  an  application  to  a  judge,  compel  the  opposite  party  to  attend 
with  it  at  the  stamp  office  for  the  purpose  of  having  it  properly  stamped. 

The  cases  which  will  be  brought  in  review  in  the  remaining  part  of  this 
chapter  have  been  determined  upon  former  stamp  acts  not  now  in  force.  But 
as  those  acts  relate  to  duties  payable  on  the  same  kind  of  instruments  as  are 
mentioned  in  the  present  stamp  act,  and  as  this  act  uses  nearly  the  same  words 
as  the  former,  it  is  conceived  the  following  cases  will  be  found  useful  in  the  con- 
struction  of  the  present  stamp  act.  I  shall  therefore  consider  them  in  the  fol- 
lowing order,  viz. 

1.  Of  agreements  not  within  the  stamp  acts. 

2.  Of  agreements  relating  to  different  subjects,  with   several  persons  ;  and 

of  distinct  and  separate  agreements  on  the  same  paper,  but  with  one 
stamp  only. 

3.  Of  the  effect  of  altering  an  agreement  after  it  has  been  executed. 

4.  Of  the  exempting  clause  relating  to  the  sale  of  goods. 

5.  Of  the  exemption  in  favour  of  letters  passing  by   the  post   between  mer- 

chants and  others,  &c. 

1.  OF  AGREEMENTS  NOT  WITHIN  THE  STAMP  ACTS. 

An  agreement  made  abroad,  or  at  sea,  is  not  within  the  stamp  acts,  (d)  But 
if  an  instrument  be  executed  in  a  foreign  country,  and  by  the  laws  of  that  coun- 
try a  stamp  is  required,  it  cannot  be  received  in  evidence  in  this  country,  un- 
less it  is  stamped  with  the  proper  stamp  imposed  upon  such  instruments  by  the 
laws  of  the  foreign  country.  Thus,  in  the  case  of  Alves  v.  Hodson,  (e)  which 
was  an  action  for  sailors'  wages  for  the  voyage  or  run  from  Jamaica  to  London, 
upon  the  following  written  note,  viz. 

"  Three  days  after  the  arrival  of  the  ship  Neill  Malcolm  at  her  moorings  in 
the  river  Thames,  I  promise  to  pay  William  Alves  50  guineas,  if  he  *does  his 
duty  as  an  able  seaman  on  board  the  said  ship.  J.  Hodson,  Jamaica,  July  25, 
1796." 

At  the  trial  it  was  proved  by  a  clerk  from  the  office  of  the  secretary  of 
state,  who  produced  the  acts  of  assembly   of  the  island  of  Jamaica,  by  one  of 


(o)  Phil,  on  Evid.  c.  9.  (d)   Zimenes  v.  Jaques,   1   Esp.  Rep.  311. 

(b)  Rippiner  v.  Wright,  2   Barn,  and  Aid.  Winbled  v.  JMalmberg,  Ibid.  454. 

478.  et  vide  3  B.  &  A.  588.  S.  P.  (e)  7  Term.  Rep.  241.  &  2  Esp.  Rep.  528. 

(c)  Doc  v.  Hore,  2  Esp.  Rep.  724.  S.  C. 


« 


47 


Chap.  3.]  Of  the  Stamping  of  Contracts  and  Agreements.  47 

which  a  stamp  duty  of  Is.  'id.  was  imposed  on  every  sheet,  or  piece  of  paper, 
whereon  was  written  any  promissory  note  above  20/.  and  not  exceeding  50/., 
and  so  progressively.  The  note  in  question  not  being  stamped,  the  counsel  for 
the  defendant  objected  to  its  being  read  in  evidence.  On  the  other  side  it  was 
contended,  that  this  was  a  mere  revenue  law  of  that  country,  by  which  the 
courts  of  this  country  were  not  bound.  But  Kcnyon  Ch.  J.  said,  "  In  decid- 
ing on  instruments  made  abroad,  I  think  we  are  bound  to  consider  the  laws  of 
that  country  where  the  contract  is  made ;  and  if  they  are  not  obligatory  by 
such  laws,  they  cannot  be  enforced  here.  By  the  law  of  Jamaica,  given  in 
evidence,  the  instrument  produced  would  be  invalid  for  want  of  a  stamp.  I 
am  therefore  of  opinion,  that  we  cannot  give  it  validity  here."  And  of  this 
opinion  was  the  Court  upon  a  motion  to  set  aside  the  verdict,  and  for  leave  to 
enter  a  nonsuit. 

So,  an  agreement  made  in  England  to  accept  a  bill  of  exchange  drawn 
abroad  requires  a  stamp. (/)  If  an  instrument  be  inadmissible  in  evidence  in 
a  foreign  country  without  a  stamp,  it  cannot  in  general  be  admitted  in  our 
courts  ;  the  law,  however,  of  that  country  must  be  distinctly  proved,  (g) 

A  mere  written  acknowledgment  of  a  debt  need  not  be  stamped.  Thus,  in 
the  case  of  Fisher  v.  Leslie,(h)  which  was  an  action  for  money  lent,  and  for 
money  due  upon  an  account  stated.  At  the  trial,  in  support  of  the  plaintiff's 
case,  the  following  paper  writing,  signed  by  the  defendant,  was  produced  and 
proved,  "  I.  O.  U.  eight  guineas."  On  the  part  of  the  defendant,  it  was  con- 
tended that  this  paper  ought  to  be  stamped,  either  as  a  promissory  note,  or  a 
receipt  for  money.  But  Eyre  Ch.  J.  said,  "  I  am  of  opinion  that  it  is  merely 
an  acknowledgment  of  a  debt,  and  neither  a  promissory  note  or  a  receipt ;  and 
it  was  accordingly  admitted  and  read  in  evidence. 

A  letter  containing  a  contract  of  marriage  need  not  be  stamped,  being  con- 
sidered as  falling  within  the  words,  "  the  matter  thereof  not  being  of  the  value 
of  20/."(/)  So,  an  agreement  to  confess  judgment  for  a  sum  exceeding  20/., 
to  secure  a  sum  under  that  amount  and  costs,  is  an  agreement  under  20/.  (k) 
So,  where  an  article  is  sold  by  auction  in  separate  lots  to  the  same  purchaser, 
if  each  separate  lot  be  under  20/.  value,  no  stamp  is  requisite.  (/) 

A  cognovit  containing  any  matters  of  agreement,  as  to  take  the  debt  *by  in- 
stalments, must  have  an  agreement  stamp.  But  a  mere  cognovit  without  any 
matter  or  agreement  does  not  require  a  stamp.  (?n)  Articles  of  agreement 
under  seal  cannot  be  given  in  evidence  unless  stamped  with  a  deed  stamp,  (n) 
An  instrument  by  which  the  party  promises  to  pay  the  sum  of  65/.,  and  also 
such  other  sums  as,  by  reference  to  his  books,  he  owed,  with  interest,  is  not  a 
promissory  note,  and,  therefore,  cannot  be  given  in   evidence  without  an  agree- 


(/)   Crutchley  v.  Mann,    1   Mar.  29.      5        (1)  Ames  v.  Hill,  2  Bos.  &  Pul.  150. 

Taunt.  529.  S.  C.  (')  Emmerson  v.  Heelis,  2  Taunt.  33. 

(»■)  3  Campb.  166.  (>»)  Reardonv.  Swaby,  4  East  Rep.  188. 

(A)    1  Esp.  Rrp.  426.     1  Campb.  499.  But         (»)  Robinson  v.  Dnjbroitgh,  6  T.   R.  317. 

see  Chitty  on  Bills,  5  ed.428.  n.  5.  Sed  ante  sect.  10.  of  the  stamp  act. 

(i)   Orford  v.  Cole,  2  Stark.  351. 

7  #48 


48  Of  the  Stamping  of  Contracts  and  Agreements.  [Part  I. 

ment  stamp,  (o)  A  memorandum  given  by  an  overseer  of  the  poor  to  the  re- 
puted father  of  a  bastard  that  he  had  received  a  bill  of  exchange  for  a  certain 
sum  of  money,  which  when  paid  would  exonerate  him  from  the  expences  at- 
tending the  birth  and  maintenance  of  such  child,  does  not  require  an  agreement 
stamp,  (jo) 

A  copy  of  an  advertisement  in  the  Gazette,  of  an  agreement  to  dissolve  a 
partnership,  must  have  an  agreement  stamp,  (q)  But  a  mere  notice  of  a  dis- 
solution does  not  require  to  be  stamped,  (r) 

If  an  action  is  brought  upon  an  agreement  contained  in  a  prospectus  of 
terms  delivered  by  the  plaintiff  to  the  defendant,  that  identical  prospectus  so 
delivered  must  be  stamped ;  the  stamping  of  a  copy  is  not  sufficient,  (s)  It 
has,  however,  been  held,  that  a  person  signifying  by  a  printed  prospectus  the 
terms  on  which  he  was  ready  to  engage  to  perform  particular  services,  may, 
in  an  action  against  one  who  has  employed  him  under  those  terms  by  a  parol 
agreement,  read  the  prospectus  in  evidence,  without  being  stamped. (t)  But  a 
schoolmaster's  printed  terms  delivered  to  a  parent,  requiring  a  month's  notice 
of  the  removal  of  a  scholar,  cannot  be  given   in  evidence    without  a  stamp,  (m) 

A  proposal  to  do  certain  works,  containing  an  estimate  of  the  amount,  not 
finally  acceded  to,  may  be  read  in  evidence,  although  not  stamped  (u) 

A  written  paper  signed  by  an  auctioneer,  and  delivered  to  the  bidder,  to 
whom  lands  were  let  by  auction,  containing  the  description  of  the  lands,  the 
term  for  which  they  are  let  to  the  bidder,  and  the  rent  payable,  must  be  stamped, 
though  it  be  only  evidence  of  part  of  the  contract,  (w)  But  unless  such  paper 
be  signed  by  the  auctioneer,  it  need  not  be  stamped. (x)  And  any  writing 
which  would  be  evidence  of  part  of  the  contract  only,  must  be  stamped,  (y) 

So,  a  schedule  requires  a  stamp,  as  being  part  of  the  agreement  to  which  it 
is  annexed. (z) 

*So,  a  bill  of  parcels  subscribed  "  Settled  by  two  bills,  one  at  nine  and  the 
other  at  twelve  months,"  requires  either  a  receipt  or  an  agreement  stamp.(a) 

2.  OF  AGREEMENTS  RELATING  TO  DIFFERENT  SUBJECTS  WITH  SEVE- 
RAL PERSONS;  AND  OF  DISTINCT  AND  SEPARATE  AGREEMENTS  ON 
THE  SAME  PAPER,  BUT  WITH  ONE  STAMP   ONLY. 

It  is  now  settled,  that  though  a  deed  or  agreement  may  affect  the  separate 
interest  of  several  parties,  yet  if  there  be  a  community  of  the  same  subject 
matter  as  to  all  of  them,  one  stamp  will  be  sufficient ;  but  where  the  parties 
have  separate  and  distinct  interests  in  different  subjects,  in  that  case  there  must 
be  a  separate  stamp  for  each  party.(i)  Thus,  in  the  common  case  of  a  deed  or 


(o)  Smithv.  Nightingale,  2  Stark.  375.  f»   Penniford  v.  Hamilton,  2  Stark.  475. 

(p)   Watkins  v.  Hewlett,  3  Mo.  211.  (w)  Ramsbollom  v.  Mortley,2  M.  &  S.  445. 

(a)  May  v.  Smith,  1  Esp.  Rep.  233.  (x)   Same  v.  Tunbridge,  lb.  434. 

r)  Jenkins  v.  Blizard,  1  Stark.  418.  (y)  2  M.  &  S.  445. 


i 


ys)   Williams  v.  Sloughton,  2  Stark.  292.  (z)  3  East  Rep.  326. 

(i)  Edgar  v.   Blick,  1  Stark.  464.  (a)  Smith  v.  Kelly,  4  Esp.  Rep.  249. 

(u)  2  Stark.  292.  (6)  13  East  Rep.  246. 

•49 


Chap.  8.]  Of  the  Stamping  of  Contracts  and  Agreements.  49 

agreement  between  a  debtor  and  his  creditors,  where  each  creditor  signs  the 
same,  and  thereby  agrees  either  to  give  further  day  of  payment  of  their  respec- 
tive debts,  or  to  accept  a  certain  sum  by  way  of  composition ;  in  that  case, 
though  the  agreement  is  in  fact  a  separate  covenant,  and  the  several  deed  of 
each  creditor,  yet,  as  there  is  a  community  of  the  same  subject  matter,  and 
the  whole  being  one  transaction  only,  a  separate  stamp  for  each  person  is  not 
required,  (c)  So,  where  one  paper  contains  two  contracts  for  the  purchase  of 
different  lots  by  several  persons,  and  a  proper  stamp  be  impressed  on  that  part 
of  the  paper  on  which  is  written  one  of  the  contracts,  this  is  sufficient  to  legalize 
the  evidence  of  that  particular  contract.  But  in  order  to  make  both  contracts 
binding,  there  must  be  two  stamps,  (d) 

So,  though  an  agreement  by  several  individuals  for  a  subscription  to  one 
common  fund,  is,  in  its  nature,  separate  as  to  each  subscriber,  yet  it  requires 
but  one  stamp,  (e)  And  an  agreement  relative  to  prize  shares,  though  several 
as  t®  each  person,  requires  one  stamp  only,  (f)  So,  where  a  wager  upon  a 
horse-race  was  reduced  into  writing,  which  was  duly  stamped,  and  the  bet  was 
afterwards,  by  indorsement,  doubled  ;  it  was  determined  that  the  stamp  was 
sufficient  to  cover  the  original  bet,  but  not  the  latter. (g) 

3.  OF  THE  EFFECT  OF  ALTERING  AN  AGREEMENT  AFTER  IT 
HAS  BEEN  ONCE  EXECUTED  AND  DELIVERED. 

Where  an  agreement  has  been  signed  by  one  party  only,  and  previously  to 
the  other  party  signing  it,  a  new  stipulation  is  inserted  ;  such  *agreement  does 
not  require  a  new  stamp,  (h)  But  after  it  has  been  once  executed  by  both  par- 
ties, and  delivered,  if  any  additional  stipulation  or  other  material  alteration  be 
made,  it  will  require  a  new  stamp  ;  unless  it  happen  to  be  an  immaterial  altera- 
tion.^) 

4.  OF  THE  EXEMPTION  CLAUSE  RELATING  TO  THE  SALE  OF  GOODS. 

Upon  the  exemption  clause  in  the  stamp  acts  relating  to  the  sale  of  goods,  it 
has  been  determined,  that  a  contract  for  the  sale  of  a  quantity  of  oil  in  a  raw 
state,  and  consequently  not  capable  of  immediate  delivery  at  the  time  of  sale,  is 
nevertheless  within  the  clause,  as  being  a  contract  relating  to  the  sale  of 
goods. (&)  But  where  the  subject  matter  of  contract  does  not  exist  in  the  state 
of  goods  at  the  time  of  making  the  contract,  and  requires  labour  and  materials 
to  bring  it  into  that  state,  in  that  case  the  contract  does  not  fall  within  the  ex- 
emption.^)    A  receipt  for  the   price  of  a  horse,   containing  a  warranty,   does 


(c)  1  New.  Rep.  274.     1  Marsh.  525.  Sanderson  v.  Symonds,  1  Brod.  &  Bine  426. 

(d)  12  East  Rep.  6.     13  East  Rep.  241.  (i)    1  Brod.  &  B.  426.  and  see  Chitty  on 

(e)  13  East  Rep.  232.  Bills,  6  cd.  101,  &c. 

(/)  Ibid.  235.  n.  6.  (k)    Wilks  v.  Atkinson,  1  Marsh.  412. 

\g)  Peake's  N.  P.  Cas.  127.  (I)   Waddington  v.  Bristow,  2  Bos.  &  Pul. 

(A)  Bathe  v.  Taylor,  15  East  Rep.  417,  4 IS.  452. 

*50 


50    Of  the  Stamping  of  Contracts  and  Agreements.  [Part  I* 

not  require  an  agreement  stamp  (//?)  An  agreement  to  share  in  goods  purchas- 
ed by  one  of  the  contracting  parties  on  their  joint  account,  does  not  require  a 
stamp.(«)  But  an  agreement  between  merchants,  that  one  shall  take  a  share 
in  an  outfit  of  a  ship  and  the  adventure,  is  not  an  agreement  for  the  sale  of 
goods  within  the  exception;  and  therefore  must  be  stamped. (o)  But  an  agree- 
ment by  a  broker  to  indemnify  his  principal  on  the  re-sale  of  goods  purchased 
by  him,  need  not  be  stamped  ;  such  agreement  being  considered  as  relating  to 
the  sale  of  goods. (p)  So,  an  undertaking  to  guarantee  the  payment  of  goods 
sold  to  a  third  person,  is  within  the  exception,  (q)  And  a  stipulation  for  re- 
scinding a  former  agreement  for  the  sale  of  goods,  does  not  require  an  agree- 
ment stamp,  (r)  Again,  an  unstamped  agreement  is  valid,  so  far  as  it  relates 
to  the  sale  of  goods,  though  it  contains  stipulations  unconnected  with  the  con- 
tract of  sale,  (s) 

An  executory  agreement  for  making  and  putting  up  of  machines  in  a  house, 
does  not  fall  within  the  exception,  (t)  So,  an  agreement  for  the  sale  of  crops 
growing,  is  not  within  the  clause  of  exemption. (v) 

*S.  OF  THE  EXEMPTION  OF  LETTERS  PASSING  BY  POST  BETWEEN 

MERCHANTS  AND  TRADERS. 

In  the  case  of  Mackenzie  v.  Banks,{w)  which  was  an  action  on  the  defend- 
ant's undertaking  to  pay  the  debt  of  his  mother,  who  was  in  trade,  the  debt 
arose  in  the  course  of  her  business,  which  the  defendant  assisted  her  in  carry- 
ing on,  though  without  any  share  in  it.  The  evidence  of  the  undertaking  was 
a  letter  written  by  the  defendant  to  the  plaintiff.  And  the  question  was,  wheth- 
er it  ought  to  have  been  stamped,  as  all  agreements  in  writing  are  required  to 
be  by  the  23  Geo.  III.  c.  58.  "  whether  the  writing  be  only  evidence  of  the 
contract,  or  obligatory  upon  the  parties  from  its  being  a  written  instrument ;" 
or  whether  this  letter  came  within  the  exception  of  the  32  Geo.  3.  c.  51.  s.  1. 
by  which  it  is  provided  that  the  first-mentioned  act  "  shall  not  extend  to  make 
liable  to  the  said  stamp  duty  any  letter  passing  by  the  post  between  merchants, 
or  other  persons  carrying  on  trade  or  commerce  in  this  kingdom  residing  at  50 
miles  distance  from  each  other."  At  the  trial,  the  letter  had  been  received  in 
evidence  unstamped  by  Lord  Kenyan  Ch.  J.,  and  the  plaintiff  obtained  a  ver- 
dict. But  a  motion  was  afterwards  made  to  set  aside  the  verdict,  on  the  ground 
that  the  letter  did  not  fall  within  the  terms  of  the  exception  in  the  latter  statute  : 
and  it  was  argued  that  the  defendant  was  neither  a  merchant  or  trader  ;  he  had 
no  concern  in  his  mother's  business.  The  letter  was  not  written  by  him  as 
agent  for  his  mother,  in  which  case,  perhaps,  the  exception  might  have  extend- 
ed to  him,  but  in  his  own  individual  character  to  pay  the  debt  of  another.     His 

(m)  2  Campb.  Rep.  407.  (,•)   Whitworth  v.  Crockett,  ib.  431. 

(>i)    Venning  v.  Leckie,  13  East  Rep.  7.  (s)  Heron  v.  Granger,  5  Esp.  269. 

(o)  Leigh  v.  Banner,  1  Esp.  Rep.  403.  (t)  Buxton  v.  Bidall,  3  East  Rep.  303. 

0>)   Curry  v.  Edensor,  3  T.  R.  524.  (»)  2  Taunt.  38.     2  Bos.  &.  Pul.  452. 
(«j)    Warrington  v.  Furbor,  S  East  Rep.  242.         (io)  5  Term  Rep.  176. 
Watkins  v.  Vince,  2  Stark.  368. 
♦51 


Chap.  3.]  Of  the  Stamping  of  Contracts  and  Agreements.  51 

promise,  therefore,  was  like  that  of  any  other  indifferent  person.  The  legisla- 
ture only  intended  to  protect  persons,  whose  ordinary  business  led  them  to  write 
to  each  other  in  the  course  of  their  own  particular  callings.  A  person,  who 
was  not  a  trader,  although  he  wrote  a  letter  concerning  some  trading  contract, 
would  not  be  within  the  words  or  meaning  of  the  exemption.  But  the  Court 
said,  "  It  appears  in  evidence  that  the  defendant  did  carry  on  the  business  for 
his  mother,  and  that  this  debt  arose  in  the  regular  course  of  the  trade.  And 
therefore  any  letter  written  by  him  on  account  of  that  very  trade,  whereby  he 
bound  himself  to  another  tradesman,  may  fairly  be  construed  to  fall  within  the 
letter  and  spirit  of  the  act ;  which  meant  that  the  correspondence  of  merchants 
and  tradesmen  at  a  distance  from  each  other,  on  the  faith  of  which  they  had 
considerable  dealings,  should  not  be  fettered  with  stamps." 

A  letter  to  a  correspondent,  requesting  him  to  pay  to  certain  persons  or  their 
order  600Z.  out  of  the  first  proceeds  that  should  become  due  of  a  stock  of  gun- 
powder then  in  his  hands,  and  to  charge  the  same  to  account,  *is  not  within 
the  exception  ofjhe  act,  but  must  be  stamped  as  a  bill  of  exchange,  although 
the  letter  form  part  of  a  subsequent  correspondence  between  the  three  houses. (x) 
So,  a  letter  from  a  principal  to  his  factor,  containing  bills  of  exchange  drawn 
upon  the  latter,  and  in  which  the  principal  promised  to  provide  for  the  bills  if 
certain  goods,  then  either  in  the  factor's  possession  or  about  to  be  placed  in  his 
hands,  should  remain  unsold  at  the  time  of  the  bills  falling  due,  requires  to  be 
stamped,  and  does  not  come  within  the  exception  in  the  stamp  act,  as  a  letter 
for  or  relating  to  the  sale  of  goods ;  the  primary  object  of  such  letter  not 
being  the  sale  of  goods,  but  the  obtaining  of  an  advance  of  money  on  the 
goods,  (y) 


(x)  Butts  v.  Sioan,   2   Broil.  &  Bing.  78.         (i/)   Smith  v.  Cator,  2  B.  &  A.  778. 
Firbank  v.  Bell,  1  B.  &  A.  36. 

*52 


53      Of  Contracts  Illegal  by  the   Common  Law.     [Part  I. 


*  CHAPTER  IV. 


OF  CONTRACTS  AND  AGREEMENTS  DEEMED  ILLEGAL  BY  THE 
COMMON  AND  STATUTE  LAW. 

All  contracts  or  agreements  which  have  for  their  object  any  thing  which 
is  either  repugnant  to  justice,  or  in  violation  of  religion  or  public  decency, 
are  void.  So,  are  all  contracts  made  in  contravention  of  the  general  policy  of 
the  commonbiw,  or  jn  direcUoppositicm  to,  the  provisions  of  an  act  of  parlia- 
ment:  for^rtw^Tcon^acfw  ac^^wnorimr^sa^^ooia  mlawcmd*equity\lfa) 
And  whenever  a  contract  or  agreement  is  entered  into  with  a  view  to  contravene 
any  of  these  general  principles,  there  is  no  form  of  words,  however  artfully  in- 
troduced or  omitted,  which  can  prevent  courts  of  law  and  equity  from  investigat- 
ing the  truth  of  the  transaction.  And  therefore,  in  an  action  upon  a  bond(i) 
given  for  compounding  a  prosecution  for  perjury,  it  was  argued  in  support 
of  the  action,  that  no  averment  could  be  admitted  of  the  bond  having  been 
given  for  such  a  consideration,  because  it  did  not  appear  in  the  condition. 
But  to  this  it  was  answered  by  Lord  Ch.  J.  Wilmot,  "That  the  manner  of  the 
transaction  was  to  gild  over  and  conceal  the  truth  ;  and  whenever  courts  of  law 
see  such  attempts  made  to  conceal  such  wicked  deeds,  they  will  brush  away  the 
cobweb  varnish,  and  show  the  transactions  in  their  true  light.  This  is  an 
agreement  to  stifle  a  prosecution  for  wilful  and  corrupt  perjury,  a  crime  most 
detrimental  to  the  commonwealth  ;  for  it  is  the  duty  of  every  man  to  prosecute, 
appear  against,  and  bring  offenders  of  this  sort  to  justice.  This  is  a  contract 
to  tempt  a  man  to  transgress  the  law,  to  do  that  which  is  injurious  to  the  com- 
munity :  it  is  void  by  the  common  law  ;  and  the  reason  why  the  common  law 
says  such  contracts  are  void,  is  for  the  public  good.  You  shall  not  stipulate  for 
iniquity.  All  writers  upon  our  law  agree  in  this,  that  no  polluted  hand  shall 
touch  the  pure  fountains  of  justice.  Whoever  is  a  party  to  an  unlawful  con- 
tract, if  he  hath  once  paid  the  money  stipulated  to  be  paid  in  pursuance  there- 
of, he  shall  not  have  the  help  of  a  court  to  fetch  it  back  again  ;  you  shall  not 
have  a  right  of  action,  when  you  come  into  a  court  of  justice  in  this  unclean 
manner  to  recover  it  back.'' 

Upon  the  same  principle  it  has  been  determined,  that  if  A.  promise  B.  money 


(a)  See  Fonbl.  Treat,  of  Equity,  vol.  i.         (b)  Collins   v.  Blantern,  2  Wils.  341.  347. 
bk.  1.  c.  4.  s.  4.  n.  y.  See  also  1  P.  Wins.  156.  220. 

*53 


7    * 


Chap.  4.]     Of  Contracts  Illegal  by  the  Common  Law,      53 

in  consideration  that  he  will  not  give  evidence  in  a  suit  depending,  such  prom- 
ise cannot  be  enforced;  it  being  unlawful  and  iniquitous  *for  any  man  to  sup- 
press testimony  in  any  cause,  (c)  So,  a  promise  made  by  the  friend  of  a  bank- 
rupt when  the  latter  was  on  his  last  examination,  that  in  consideration  that 
the  assignees  and  commissioners  would  forbear  to  examine  him  touching 
certain  sums  which  he  was  charged  with  having  received  and  not  accounted 
for,  he  would  pay  such  sums  as  the  bankrupt  had  received  and  not  accounted 
for,  is  void ;  as  being  against  the  policy  of  the  bankrupt  laws :  for  the  inten- 
tion of  the  legislature  was,  that  the  creditors  should  have  the  full  examination 
of  the  bankrupt  as  to  the  state  of  his  effects  and  the  disposition  of  them ; 
whereas  the  promise  in  this  case  would  be  to  induce  the  assignees  and  commis- 
sioners to  forbear  doing  their  duty,  (d)  But  a  covenant  by  a  friend  of  a  bankrupt  to 
pay  all  his  creditors  their  full  debts,  in  consideration  that  they  will  not  proceed 
any  further  under  the  commission,  is  lawful,  (e)  So,  an  agreement  not  to 
move  the  court  against  an  attorney  for  malpractices,  is  illegal  and  void,  (f)  But 
a  promissory  note  given  by  a  party  indicted  for  a  misdemeanor,  for  the 
amount  of  the  costs  and  expences  of  the  prosecution,  is  valid  when  given  after 
the  conviction,  and  at  the  recommendation  of  the  court,  (g)  A  contract  or 
agreement  must  be  unlawful  at  the  time  of  making  it,  otherwise  it  cannot  be 
set  aside  ;  for  it  is  said,  (A)  the  law  knows  of  no  contract  but  what  was  good 
or  bad  at  the  time  of  the  contract  made  ;  it  cannot  be  one  or  other  according  to 
a  subsequent  contingency. 

In  this  chapter  it  will  only  be  necessary  to  bring  before  the  reader  a  general 
view  of  the  cases  in  which  contracts  and  agreements  are  declared  void  by 
the  common  law,  and  those  which  are  prohibited  by  statute.  In  considering 
those  which  come  under  the  first  class,  it  is  hardly  necessary  to  observe,  that 
every  contract  or  agreement  which  has  for  its  object  any  thing  forbidden  by 
the  law  of  God  ;  as  to  commit  murder,  theft,  perjury,  or  other  crime,  is  void 
by  the  common  law.  Therefore,  if  a  man  is  under  an  obligation  to  pay  to  an- 
other 201.  if  he  will  kill  or  rob  such  a  person ;  this  is  a  void  obligation,  and 
creates  no  right,  (i)  The  common  law  also  prohibits  every  thing  which  is  un- 
just, or  contra  bonos  mores.  Therefore,  a  contract  or  agreement  which  is  made 
in  contravention  of  these  general  principles  is  void  :  for  instance,  if  A.  promise, 
in  consideration  of  20s.  paid  to  him  by  B.,he  will  pay  B.  40s.  if  he  does  not 
beat  J.  S.  out  of  such  a  close  ;  this  is  illegal  and  void,  (k)  So,  if  A.  request 
B.  to  beat  another,  and  promise  to  save  him  harmless  ;  this  is  a  void  consid- 
eration, for  the  act  is  unlawful.  (I)  But  it  is  said,  (m)  if  I  request  another  to 
enter  into  B.'s  land,  and  in    my  name    *to  drive  out   the  beasts   and  impound 


(c)  1  Leon.  ISO.  N.  P.  146. 

(d)  Ntrot   v.  Wallace,  3  Term  Rep.  17.  (i)  Fitzh.  Abr.  tit.  Obligation,  13. 

(e)  Kaye  v.    Bolton,  6  Term  Rep.  134.  (k)  2  Lev.  174. 
(/)   1  Campb.  Rep.  55.  (/)  Hutt.  56. 

(g)   11  East  Rep.  46.  (m)  Per  Hobart,  in  the  case  of  Hutton  and 

(h)  Per  Cur.  10  Mod.  67.    See  also  Bui.  Winch,  Win.  49. 

*54  *55 


55       Of  Contracts  Illegal  by  the  Common  Law.    [Part  I. 

them,  and  promise  to   save  him  harmless,  this  is  a  good  assumpsit,  though  the 
act  is  tortious. (40) 

2.  Of  Contracts  respecting  Cohabitation  and  Prostitution.] — Con- 
tracts entered  into  with  a  view  to  future  cohabitation  and  prostitution  are  ille- 
gal and  void,  as  being  against  public  morality,  (n)  But  an  engagement  merely 
by  way  of  reparation  for  past  seduction  and  cohabitation  is  valid  ;  for  this  is 
no  more  than  what  a  man  ought,  in  honour  and  conscience,  to  do.(o)  But  a 
contract  for  the  use  and  occupation  of  lodgings  which  are  let  expressly  for  the 
purposes  of  prostitution,  is  void.(/j)  Though  an  agreement  to  pay  for  the 
washing  and  getting  up  of  expensive  articles  of  dress  for  a  prostitute  is  valid, 
though  it  be  known  to  the  party  by  whom  the  work  is  done,  that  the  dresses 
are  to  enable  her  to  appear  at  public  places,  &c.  (q) 

3.  Of  Contracts  made  in  Restraint  of  trade.]  (41) — All  contracts, 
which  have  for  their  object  any  thing  contrary  to  the  principles  of  sound  poli- 
cy, are  void  by  the  common  law.(r)  Under  this  description  may  be  ranked 
contracts  which  bind  any  to  a  total  restraint  of  trade  ;  for  all  such  obligations 
are  contrary  to  principles  of  national  policy,  one  great  object  of  which  is  to 
encourage  and  promote  trade.  Therefore  it  has  been  holden,  that  a  promise 
or  obligation  which  binds  any  to  a  total  restraint  of  trade,  whether  for  a  limited 
time  or  generally,  is  unlawful  and  void,  (s)  But,  if  a  man  for  a  good  consider- 
ation restrains  himself  from  the  exercise  of  his  trade  in  a  particular  place,  this 
is  lawful ;  for  the  policy  of  the  nation  is  not  concerned  in  what  place  a  man 
exercises  his  calling.  And  there  may  happen  instances  wherein  such  a  con- 
tract may  be  useful  and  beneficial ;  as  to  prevent  a  town  from  being  over- 
stocked with  any  particular  trade ;  or,  in  the  case  of  an  old  man,  who,  per- 
ceiving himself  under  such  circumstances  of  body  or  mind  as  that  he  is  likely 
to  be  a  loser  by  continuing  his  trade,  will  find  it  better  to  part  with  it  for  a  con- 
sideration ;  that,  by  selling  his  custom,  he  may  procure  to  himself  a  livelihood, 
which  he  might  probably  have  lost  by  trading  longer,  (t) 

4.  Of  Restraint  of  Marriage.] — Upon  the  same  principle  of  public 
policy  the  common  law  makes  void  all  contracts   and  agreements   which  to- 

(n)   Walker  v.  Perkins,  3  Burr.  1 563.    See  (q)   1   Bos.   and    Pul.    340.     See    also   1 

also  2  Ves.  160.  5  Ves.  jun.  293.  Campb.  348. 

(o)  Jirmandale  v.  Harris,  2  P.  Wms.  432.  (>■)  Vide  Covvp.  39. 

Cray  v.  Rooke,  Forrest.  153.  Turner  v.  Vaug-  (s)  Vide  Mitchel  v.  Reynolds,   1  P.   Wms. 

Hon,  2  Wils.  339.  181.     Et  post,  Part  II.  c.  10. 

(p)  1  Esp.  Rep.  13.  Ni.  Pri.  Abr.  59,  60.  (*)  Ibid. 

(40)  If  one  request  or  direct  another  to  do  an  act  which  is  known  to  be  a  trespass,  and 
promise  to  indemnify  him,  the  promise  is  void;  but  if  the  party  who  does  the  act  at  the 
instance  or  command  of  another,  does  not  know  at  the  time,  that  the  act  is  unlawful,  the 
promise  of  indemnity  is  valid.  Allaire  v.  Oidand,  2  J.  C.  52.  Coventry  v.  Barton,  17  J.  R. 
142. 

In  relation  to  contracts,  the  consideration  of  which  is  illegal,  See  Bartle  v.  Nutt,  Adm'r. 
of  Coleman,  4  Peters,  184.  Craig  v.  State  of  Missouri,  Id.  410.  Fales  v.  Mayberry,  2  Gall. 
560.  Armstrong  v.  Toler,  11  Wheat.  258.  and  cases  cited  in  note  (a)  p.  265.  1  Swift's 
Dijz.  209,  et  seq. 

(41)  See  post,  Chap.  X. 


Chap.  4]     Of  Contracts  Illegal  by  the  Common  Law.        55 

tally  restrain  a  person  from  marrying,  or  from  marrying  any  body  except  a  par- 
ticular person,  without  imposing  an  obligation  to  marry  that  particular  person  : 
Thus,  where  A.  promised  B.  that  he  *would  not  marry  with  any  person  besides 
herself;  and  if  he  did,  he  agreed  to  pay  her  10002.  The  Court  held,  that  this 
was  an  agreement  in  restraint  of  marriage ;  for  it  was  not  a  covenant  to  marry 
the  plaintiff,  but  not  to  marry  any  one  else  ;  and  yet  she  was  under  no  obliga- 
tion to  marry  him  ;  so  that  it  restrained  him  from  marrying  at  all,  in  case  she 
had  chosen  not  to  permit  him  to  marry  \\e,r.{u)  (42) 

5.  Marriage  Brocage  Contracts.] — So,  all  marriage  brocage  contracts 
are  void.(t>)  These  contracts  are  so  called  from  the  circumstance  of  their 
promising  a  reward  to  a  person  if,  by  reason  of  the  influence  which  he  may 
possess  over  one  of  the  parties  to  the  match,  which  is  sought  to  be  accomplish- 
ed, he  can  procure  a  marriage  between  them.  They  are  also  considered  to  be 
of  a  very  pernicious  tendency,  by  being  the  occasion  of  many  unhappy  mar- 
riages. (43) 

G.  Simoniacal  Contracts.] — So,  all  simoniacal  contracts  are  void  :  Thus, 
where  the  consideration  of  the  contract  was,  that  the  plaintiff  would  procure 
the  defendant  to  be  presented  and  instituted  to  a  chapel,  which  was  a  donative 
in  the  king's  gift ;  it  was  adjudged  illegal,  on  the  ground  of  its  being  simony, 
and  therefore  incapable  of  supporting  an  assumpsit,  (iv) 

7.  Of  Maintenance  of  Suits.] — So,  all  contracts  and  agreements  for  the 
maintenance  of  suits  are  illegal  and  void.  (>r)  Maintenance  is  an  officious  in- 
termeddling in  a  suit  that  no  way  belongs  to  one,  by  maintaining  or  assisting 
either  party  with  money  or  otherwise,  to  prosecute  or  defend  it.  It  is  an 
offence  against  public  justice,  as  it  keeps  alive  strife  and  contention,  and  per- 
verts the  remedial  process  of  the  law  into  an  engine  of  oppression.  A  man 
may,  however,  maintain  the  suit  of  his  near  kinsman,  servant,  or  poor  neigh- 
bour, out  of  charity  and  compassion,  with  impunity.  And  any  agreement  made 
in  respect  of  such  maintenance  is  valid,  (y) 

8.  Of  Contracts  or  promises  made  with  Sheriffs.] — If  a  sheriff  for 
10/.  promise  that  a  prisoner  shall  escape,  this  promise  is  unlawful  and  void.(-z) 
So,  where  A.  is  in  execution  at  the  suit  of  B. ;  and  C,  in  consideration  that  the 
gaoler  will  permit  A.'  to  go  at  large,  assumes  and  promises  to  him  that  A.  shall 
pay  the  debt  at  a  certain  day,  and  that  he  the  said  C.  will  save  the  gaoler  harm- 

(»)  Lowe  v.  Peers,  4  Bur.  2225.  See  also  (w)  Cro.  Car.  337.  353.  361.  See  also 
10  East  Rep.  22.  2  Atk.  538.  540.  10  Ves.  the  case  of  Fytche  v.  Bishop  of  London,  Barn's 
jun.  429.  Eccl.  Law,  tit.  Simony,  4  Term  Rep.  359. 

(u)  See  Arundel  v.  Travillian,  1   Ch.  Rep.         (x)  See  1  Leon.  179.  Dy.  355.  b. 
47.  4  Bro.  P.  C.  144.  8vo.  ed.  (y)  See  1  Hawk.  P.  C.  cap.  83. 

(z)  10  Co.  102.     Cro.  El.  199. 

(42)  And  for  the  same  reason,  a  condition  annexed  to  a  devise  or  bequest  for  life,  whereby 
it  is  to  be  divested  by  the  marriage  of  the  devisee  or  legatee,  is  void  ;  because  limitations 
in  restraint  of  marriage  are  not  to  be  favored.     Parsons  v.    Winslow,  6  Mass.  Rep.  169, 

(43)  See  Boynlon  \C  Hubbard,  7  Mass.  Rep.  118.     Per  Parsons,  Ch.  J. 

8  *56 


56        Of  Contracts  Illegal  by  the  Common  Law.      [Part  I. 

less ;  this  promise  is  void,  because  the  consideration  is  against  law.  (a)  (44) 
Or,  if  a  promise  be  made  to  a  bailiff,  to  give  him  a  sum  of  money  to  accept 
bail,  it  is  void  ;  it  being  the  duty  of  the  sheriff  to  take  good  and  sufficient  bail 
when  tendered  to  him. (b)  *And  if  A.  obtains  a  judgment  against  B.,  and 
thereupon  takes  out  an  elegit,  and  delivers  it  to  the  under-sheriff,  who  by  vir- 
tue thereof  seizes  certain  goods  of  B. ;  and  afterwards  the  under-sheriff,  in 
consideration  that  A.  will  take  out  a  new  elegit,  and  deliver  it  to  him,  promises 
to  cause  and  procure  the  said  goods  to  be  found  by  inquisition,  and  to  deliver 
the  same  to  such  person  as  A.  shall  appoint,  &c. ;  this  promise  is  against 
law,  being  to  do  a  thing  against  the  duty  of  his  place,  by  which  he  is  bound  to 
return  an  indifferent  and  equal  jury  between  the  parties ;  and  though  part  of 
the  promise  was  to  do  a  lawful  act,  yet  that  depending  upon  the  other  part, 
which  was  illegal,  makes  the  whole  void.(c) 

But  a  contract  to  indemnify  a  sheriff  in  the  doing  of  a  lawful  act  is  good  ;  as 
where  a  plaintiff  in  an  action  pointed  out  particular  goods,  and  desired  the  sher- 
iff to  take  them  under  a  fieri  facias ;  and  in  consideration  that  the  sheriff  would 
take  them,  the  plaintiff  promised  to  indemnify  him  ;  this  was  held  a  valid  prom- 
ise ;  for  the  plaintiff  having  pointed  out  the  goods,  and  required  the  sheriff  to 
take  them  in  execution,  it  was  reasonable  that  he  should  save  the  sheriff  harm- 
less, (d)  So,  where  A.  was  arrested,  and  C.  in  consideration  that  the  bailiff 
would  suffer  A.  to  continue  in  the  house  of  C.  till  the  next  morning,  promised 
that  he  would  then  deliver  A.  in  safe  custody  to  the  bailiff;  this  was  held  to  be 
a  lawful  consideration ;  for  it  shall  not  be  intended  that  the  bailiff  was  ever  ab- 
sent from  B.,  so  that  it  could  be  no  escape,  (e) 

9.  Trading  with  an  Enemy.]  — All  trading  with  the  subjects  of  an  ene- 
my's country  without  the  king's  licence,  is  illegal.  Therefore,  a  policy  of  in- 
surance on  enemy's  property  is  void,  (f)  It  is  also  illegal  for  a  subject  in  time 
of  war,  without  the  king's  licence,  to  bring,  even  in  a  neutral  ship,  goods  from 
an  enemy's  port,  which  were  purchased  by  his  agent  resident  in  the  enemy's 
country,  after  the  commencement  of  hostilities  ;  although  it  may  not  appear 
that  they  were  purchased  of  an  enemy,  (g)  But,  a  neutral  subject  residing  in 
the  enemy's  country,  and  carrying  on  trade  there  in  partnership  with  an  alien 
enemy,  may  insure  his  interest  in  the  joint  property.  (A)  (45) 

(a)  Yelv.  197.  2Bulst.  213.  (/)  8  Term  Rep.  548.  6  Term  Rep.  23. 

(6)  Smith  v.   Stotcsbury,  2  Bur.  924.   1  Bl.     561.    4   East  402.   417.    Et  vid.   Bac.    Abr. 

Rep.  204.  S.  C.  tit.  Alien.  D.  as  to  the  distinction  between 

(c)  T.  Jones  24.  Cart.  223.  alien  friend  and  alien  enemy,  &c.     See  also 

(d)  Cro.  Jac.  652.     See  also  1  Ld.  Raym.     8  East  Rep.  273.     Long  on  Sales.  17.  92. 
279.  (g)  Potts  v.  Bell,  8  Term  Rep.  548. 

(e)  1  Sid.  132.  1  Lev.  98.  (A)  6  Term  Rep.  413. 


(44)  See  Denny  v.  Lincoln,  5  Mass.  Rep.  385.  Churchill  v.  Perkins,  Id.  541.-  An  agree- 
ment to  indemnity  an  officer  against  his  liability  for  a  voluntary  escape,  is  void  ;  being 
against  the  policy  of  the  law.     Ayer  v.  Hutchins,  4  Mass.  Rep.  370. 

(45)  All  trading  intercourse  and  negotiation  with  an  enemy's  country,  without  the  direct 
permission  of  government,  is  unlawful. '  Griswold  v.  Waddington  in  Error,  16  J.  R.  438.  S.  P. 
Seamanv.  Waddington,  Id.  510.  Sec  Amory  v.  M'Gregor,  15  J.  R.  24.  A  contract,  the 
object  of  which,  is  the  ransom  of  a  vessel  captured  by  an  enemv,  is  almost  the  only  excep- 

#57 


Chap.  4.]   Of  Contracts  Illegal  by  the  Common  Law.       57 

10.  Of  Wagers.  J — All  wagers  which  have  a  tendency  to  incite  a  breach  of 
the  peace,  or  which  are  contrary  to  principles  of  sound  policy  or  morality, 
are  illegal,  and  void  by  the  common  law :  as,  if  a  wager  be  laid  on  the  event 
of  a  battle  ;  (i)  or  upon  the  sex  of  a  person  ;(&)  or  upon  the  event  of  war  or 
peace ;  (/)or  of  an  election  of  members  to  *serve  in  parliament ;  (»i)  (46)  or  re- 
specting the  produce  of  any  branch  of  the  revenue  :  (?i)  these  are  unlawful  and 
void.  And,  if  a  wager  is  made  merely  as  a  colour  to  disguise  an  illegal  trans- 
action, as  simony,  bribery,  usury,  or  the  like,  they  are  equally  void,  (o)  But, 
in  general,  a  wager  may  be  considered  as  legal  if  the  subject  of  it  has  no  im- 
mediate tendency  to  a  breach  of  the  peace,  or  to  affect  the  feelings  or  interest 
of  a  third  person,  and  is  not  contrary  to  the  principles  of  morality  or  sound 
policy. 

11.  Of  Gambling  or  Speculating  Contracts  made  under  Colour 
of  a  Sale  of  Goods.] — It  has  been  recently  determined  in  our  courts  of 
nisi  prius,  that  if  two  persons  enter  into  a  contract  under  the  semblance  of  a 
sale  of  goods,  not  intending  really  to  buy  or  sell  the  commodity,  but  merely  as 
a  gambling  speculation,  and  to  pay  the  difference  of  the  market  price  on  a  par- 
ticular day,  like  a  time  bargain  in  the  stocks,  such  a  contract  is  illegal  and  void 
at  common  law,  and  no  action  will  lie  to  enforce  it.  (p) 

12.  Of  Fraud.] — Contracts  which  are  infected  with  fraud  are  void  both  at 
law  and  in  equity ;  for  the  basis  of  all  dealings  ought  to  be  good  faith.  There- 
fore, where  two  sutlers  (q)  to  several  regiments  of  militia  (who  as  such  were 
entitled  to  certain  forage  of  oats  and  hay  for  divers  horses  daily  out  of  the  king's 
magazine  belonging  to  the  camp)  entered  into  an  agreement  with  the  person 
who  furnished  and  supplied  the  magazine,  that  the  sutlers  would  abstain  from 
taking  the  forage,  or  such  part  thereof  as  they  should  think  fit,  and  would  leave 
the  same  to  be  the  property  of  the  person  supplying  them,  and  that  he  should 
pay  and  allow  them  9  l-2d.  by  the  ration,  for  every  ration  to  which  they  should 

(i)  5  Term  Rep.  405.  1822,  upon  a  contract  for  tallow.     Gurney 

(k)  Cowp.  729.  and  Comyn  for  the  plaintiff",  and  Campbell 

(l)   1  Term  Rep.  57.  n.  b.  lor  the  defendant.     A  similar  case  happened 

(m)  1  Term  Rep.  56.  before  the  same  learned  judge,  of  W ardle  fy 

(n)    2  Term  R.ep.  610.  2  Bos.  and  Pul.  Fowler,  in  which  campbell  was  for  the  plain- 

130.  tiftj  and  Wilde  for  the  defendant, 

(o)  Cowp.  39.  (q)   Willis  and  another  v.  Baldwin,  Doug. 

(]})  Hilberds  v.  Pettipicrre,  coram  Ld.  Ch.  450. 

J.  Abbott,  at  the  sittings  at  Guildhall  in  Oct. 

tion  to  this  general  rule:  And  this  is  a  thing  of  necessity  arising  out  of  the  laws  of  war. 
Goodrich  v.  Gordon,  15  J.  R.  6.  Grisicold  v.  Waddington,  16  J.  R.  451 — 456.  Per  Kent, 
Chancellor.  One  citizen  of  the  United  States  cannot  lawfully  purchase  of,  or  sell  to,  another 
citizen,  a  license  or  pass  from  a  public  enemy,  to  guard  an  American  vessel  against  capture. 
Patton  v.  Nicholson,  3  Wheat.  204.  and  see  note  (a)  207.  et  seq.  See  contra,  Coolidge  v. 
Inglee,  13  Mass.  Rep.  26. 

(46)  A  wager  on  the  event  of  an  election  of  the  Chief  magistrate  of  a  state,  is  unlawful  ; 
as  being  against  public  policy.  Bunn  v.  Riker,  4  J.  R.  426.  Yeates  v.  Foot,  in  Error,  12  J. 
R.  1.  Fischer  v.  Yeates,  11  J.  R.  23.  Denniston  v.  Cook,  12  J.  R.  376.  Smyth  v.  M' Mas- 
ter, 2  Browne,  182.  But  wagers  fairly  won,  are  recoverable,  unless  founded  on  a  transac- 
tion which  is  immoral,  illegal  or  indecent.  Morgan  v.  Richards,  1  Browne,  171.  Campbell  v. 
Richardson,  10  J.  R.  406. 

*58 


58         Of  Contracts  Illegal  by  the  Common  Lata.      [Part  I. 

be  entitled,  and  which  they  should  so  leave  at  the  magazine  :  this  was  held  to 
be  a  corrupt  agreement  between  the  parties,  as  having  for  its  object  the  chea- 
ting of  government,  by  taking  a  composition  for  the  forage  of  the  whole  num- 
ber of  horses  allowed,  whether  they  were  kept  or  not,  which  was  a  clear  fraud 
upon  the  public. 

So,  where  goods  are  put  up  to  sale  by  public  auction,  under  the  usual  condi- 
tions, viz.  "  that  the  highest  bidder  shall  be  the  purchaser,"  if  the  owner,  or  any 
third  person  on  his  behalf,  secretly  attend  the  sale  and  bid  for  the  goods,  in  or- 
der to  enhance  the  price,  it  is  a  fraud  upon  the  real  bidders ;  and  the  sale  is 
therefore  void.(r)  Again,  if  A.  agree  to  purchase  goods  of  B.  at  a  certain  sum 
for  the  benefit  of  C.  ;  any  secret  *agreement  between  B.  and  C,  that  the  latter 
shall  pay  a  further  sum  for  them  is  void,  as  a  fraud  on  A.  ;  and  C.  is  not  liable  to 
pay  such  further  sum.  (s)  So,  an  agreement  to  pay  so  much  in  the  pound  for 
recommending  customers  to  purchase  goods,  is  said  (t)  to  be  illegal ;  such  en- 
gagements having  a  tendency  to  enhance  the  price  of  the  goods,  and  conse- 
quently a  species  of  fraud  upon  third  persons.  Again,  if  all  the  creditors  of  an 
insolvent  consent  to  accept  a  composition  for  their  respective  demands  upon  an 
assignment  of  his  effects  by  a  deed  of  trust,  to  which  they  are  all  parties,  and 
one  of  them,  before  he  executes,  obtain  from  the  insolvent  a  promissory  note 
for  the  residue  of  his  demand,  by  refusing  to  execute  till  such  note  be  made  ; 
the  note  is  void  in  law,  as  a  fraud  on  the  rest  of  the  creditors  ;  and  a  subse- 
quent promise  to  pay  it,  is  a  promise  without  consideration,  and  therefore  will 
not  support  an  action,  (u) 

The  only  remaining  circumstance  which  need  be  noticed  in  this  general  view 
of  the  subject  is  the  fraudulent  representation,  or  concealment  of  material 
circumstances,  which,  it  is  said,  (v)  vitiates  all  contracts.  For  it  is  a  rule, 
that  each  of  the  contracting  parties  is  bound  to  disclose  faithfully  to  the  other 
all  material  circumstances  within  his  knowledge  respecting  the  subject  matter 
of  the  contract ;  and  if  this  be  omitted,  either  from  design,  neglect,  or  accident, 
the  contract  is  void.  With  respect,  however,  to  concealment,  it  is  apprehen- 
ded that  the  rule  only  applies  to  cases  of  concealment  of  material  circumstan- 
ces which  are  exclusively  within  the  knowledge  of  one  of  the  contracting  par- 
ties, and  does  not  extend  to  cases  of  sales,  where  both  parties  inspect  the  com- 
modity bargained  for,  and  each  exercises  his  own  judgment  as  to  the  quality  and 
value,  &c.  and  where  no  deceit  is  practised  by  either  party,  (to) 

2.  OF  CONTRACTS  DECLARED  VOID  BY  STATUTE. 

Having  shown  what  contracts  and  agreements  are  void  at  the  common  law, 


(r)  Bexwell  v.  Christie,  Cowp.  395.  How-  Jackson  v.  Lomas,  4  Term  Rep.  166.  Leicester 

ard  v.Castle,  G  Term  Rep.  642.  S.  P.  And  see  v.  Rose,  4  East  372.  S.  P. 

Christie  v.  the  Attorney  General,  6  Bro.  P.C.  (v)   Per  Yates,  Just.  2  Bl.  Rep    46o  .See 

52o  also  2  P.  Wins.   170.  Doug.  260.  1    Term 

(a)  Jackson  v.  Duchaire,  3  Term  Rep.  551.  Rep.  12.  Skin.  327. 

(0  Per  Ld.  Ellenborough,  Wyburd  v.  Statu-  (w)  Vide  2  Bl.  Com.  4ol.  3  Bl.  Com.  166. 

ton,  4  Esp.  Rep.  179.  See  also  Sugden's  Law  of  Vendors,  3  Ed. 

(u)  Cockshot  v.  Bennett,  2  Term  Rep.  763.  189. 223. 

59* 


Chap.  4.]  Of  Contracts  declared  void  by  Statute.  59 

we  will  now  consider  shortly  those  which  are  declared  void  by  statute ;  and 
here  it  may  be  remarked,  as  a  general  rule,  that  every  contract  made  for  or 
about  any  matter  or  thing  which  is  prohibited  and  made  unlawful  by  any  stat- 
ute, is  a  void  contract,  though  the  statute  itself  does  not  mention  that  it  shall  be 
so,  but  only  inflicts  a  penalty  on  the  offender  ;  because  a  penalty  implies  a 
prohibition,  though  there  are  *  no  prohibitory  words  in  the  statute,  (x)  And  in 
a  very  recent  case^yj  Lord  Eldon  said,  "It  is  quite  clear  that  a  court  of  jus- 
tice can  give  no  assistance  to  the  enforcement  of  contracts  which  the  law  of  the 
land  has  interdicted."  So,  a  contract  which  is  declared  by  a  particular  statute 
to  be  illegal,  is  not  made  good  by  a  repeal  of  that  statute  after  the  contract  has 
been  executed,  (z)  And  the  circumstance  of  the  contracting  parties  being  ig- 
norant of  the  law,  and  being  innocent  of  any  intention  to  violate  it,  will  be  no 
excuse. 

1.  Or  Contracts  made  on  Sunday.] — Every  centract  made  on  a  Sunday  by 
a  person  in  exercise  of  his  ordinary  calling  is  void  by  the  stat.  29  Car.  2.  c. 
7.  (47J  But,  a  sale  of  goods  made  on  that  day,  which  is  not  made  in  the  exercise 
of  the  ordinary  calling  of  the  vendor  or  his  agent,  is  not  void  either  at  common 
law  or  by  statute,  (a) 

2.  Of  Sale  of  Officers.] — By  the  statutes  12  R.  2.C.2.  and  5  &  6  Ed.  6. 
c.  16.  the  sale  of  certain  public  offices,  and  the  deputations  thereof  are  prohib- 
ited, and  by  the  latter  statute  it  is  enacted,  that  all  agreements,  covenants, 
bonds,  or  assurances  for  any  of  the.  said  offices,  or  the  deputation  thereof,  shall 
be  void. (6 J  (48) 

3.  Sheriffs.]  —  By  the  stat.  23  Hen.  6.  c.  9.  the  sheriff  is  directed  to  let  out 
of  prison  all  persons  by  them  arrested  on  mesne  process,  or  by  cause  of  indict- 
ment of  trespass,  upon  reasonable  sureties  of  sufficient  persons.  And  it  is  enact- 
ed, "  that  no  sheriff  shall  take  any  obligation  for  any  cause  therein  directed, 
but  only  to  themselves,  of  any  person,  nor  by  any  person  which  shall  be  in  their 
ward  by  the  course  of  the  law,  but  by  the  name  of  their  office,  and  upon  condi- 
tion written,  that  the  said  prisoners  shall  appear  at  the  day  contained  in  the 
writ,  bill,  or  warrant,  and  in  such  places  as  the  said  writs,  bills,  or  warrants, 
shall  require.  And  that  if  any  of  the  said  sheriffs,  or  other  officers  or  minis- 
ters, take  any  obligation  in  another  form,  by  colour  of  their  offices,  it  shall  be 

void." 

Upon  this  statute  it  has  been  holden,  that  if  a  sherifl'lct  a  prisoner,  who  is  not 

bailable,  go  at  large  upon  his   single  bond  ;  such  obligation  is   void,    (c)     And 

(x)  Carth.  252.  1  Taunt.  13S.  5  Barn,  and  (a)  Drury  v.  Dcfontaine,  1  Taunt.  136. 

Aid.  335.  (b)  See  also  the  late  stat.  49  Geo.  3.  c. 

(y)  Ex  parte  Dyster,  2  Rose   Bkpt.  cas.  12(5.     And  for  the  cases  on  this  subject,  vide 

351.  Partii.  c.  11. 

(2)  1  H.  Blac.  C5.  (c)   10  Co.  100.  b. 

(47)  See  Morgan  v.  Richard,  1  Browne,  171.  The  letting  of  a  carriage  for  the  conveyance 
of  persons,  on  Sunday,  from  a  belief  that  it  is  to  be  used  in  a  case  of  necessity  or  charily, 
though  such  case  docs  not  in  fact  exist,  is  not  an  offence  within  the  prohibition  of  the  Stat. 
October  session  1814,  c.  17.  JMyers  v.  State  of  Connecticut.     1  Conn.  Rep.  502. 

(48)  See  post  chap.  XL. 

*60 


60  Of  Contracts  declared  void  by  Statute,       [Part  I. 

this  statute  also  extends  to  promises,  as  well  as  to  obligations  :  and  according- 
ly it  has  been  holden,  (d)  that  an  agreement  in  writing  to  put  in  good  bail  for 
a  person  arrested  on  mesne  process,  at  the  return  of  the  writ,  or  surrender  the 
body,  or  pay  debt  and  costs,  made  by  a  third  person  with  the  bailiff  of  a  sher- 
iff, in  consideration  of  his  discharging  the  party  arrested,  was  void  by  the  stat- 
ute of  Hen.  6.  ;  for,  since  the  passing  of  that  statute,  the  usage  has  been  to  take 
the  security  by  bond  ;  and  that  bond,  by  the  words  of  the  statute,  #must  be  en- 
tered into  to  the  sheriff,  or  to  such  officer  as  has  the  return  of  process ;  where- 
as here  was  no  bond,  but  a  mere  simple  contract,  and  that  with  the  sheriffs 
officer  ;  and  farther  the  bond  must  be  given  only  for  the  appearance  of  the  par- 
ty, and  for  no  other  purpose. 
.  4.  Of  Usurious  Contracts.] — By  the  stat.  12  Ann.  st.  2.  c.  16.  to  pre- 
vent usury,  it  is  enacted,  "  that  no  person  or  persons  whatsoever,  upon  any 
contract,  shall  take  directly,  or  indirectly,  for  loan  of  any  monies,  wares,  mer- 
chandize, or  other  commodities  whatsoever,  above  the  value  of  5/.  for  the  for- 
bearance of  1007.  for  a  year,  and  so  after  that  rate  for  a  greater  or  lesser  sum, 
or  for  a  longer  or  shorter  time ;  and  that  all  bonds,  contracts,  and  assurances 
whatsoever,  made  for  payment  of  any  principle,  or  money  to  be  lent  or  cove- 
nanted to  be  performed  upon  or  for  any  usury,  whereupon  or  whereby  there 
shall  be  reserved  or  taken  above  the  rate  of  5/.  in  the  hundred  as  aforesaid, 
shall  be  utterly  void."  These  restrictions,  however,  do  not  apply  to  contracts 
made  in  foreign  countries  ;  for  on  such  contracts  our  courts  will  direct  the 
payment  of  interest  according  to  the  law  of  the  country  in  which  such  contract 
was  made,  (e)  Thus  Irish,  America?},  Turkish,  and  Indian  interest  have  been 
allowed  in  our  courts  to  the  amount  of  even  12/.  per  cent.  For  the  moderation 
or  exorbitance  of  interest  depends  upon  local  circumstances,  and  the  refusal  to 
enforce  such  contracts  would  put  a  stop  to  all  foreign  trade.  (/*) 

Every  security  given  upon  an  usurious  consideration  is  so  contaminated  by 
it,  thaf  the  statute  of  usury  makes  the  security  absolutely  null  and  void  ;  so 
that  it  cannot  be  enforced  by  law  by  any  person,  however  innocent.  There- 
fore it  has  been  held,  (g)  that  a  bill  of  exchange,  or  a  promissory  note  given 
upon  an  usurious  consideration,  is  void,  even  in  the  hands  of  an  indorsee  for  a 
valuable  consideration  without  notice  of  the  usury.  But,  by  a  recent  statute 
of  the  58  Geo.  3.  c.  93.  such  bills  of  exchange  are  made  valid  in  the  hands  of  a 
bona  fide  indorsee  for  a  valuable  consideration,  without  notice  of  the  usury  be- 
tween the  original  parties. 

5.  Or  Gaming.] — Gaming  is  also  prohibited  by  statute,  though  at  common 
law  the  playing  at  cards,  dice,  &c.  when  practised  innocently,  and  as  a  recrea- 
tion, is  lawful  if  it  be  not  within  the  restriction  of  any  statute. (A)  But  as  the 
practice  was  found  to  encourage  idleness  and  other  vices,  the  statute  33  Hen. 


(<f)  Rogers  v.  Reeves,  1  Term  Rep.  41  8.  (g)  Lowe  v.  Waller,  Doug.  736.     See  also 

(e)  1  P.  Wms.  396.  1  Saund.  295.  n.  (1). 

(J)  See  Stapleton  v.  Con w ay,  3  Atk.  727.  (h)  2  Vent.    175.  Bulling  v.  Frost,  1  Esp. 

Fonbl.  Treat,  of  Eq.  bk.  5.  c.  1.  s.  6.  Rep.  235. 


* 


81 


Chap.  4.]     Of  Contracts  declared  void  by  Statute.         61 

8.  c.  9.  restrained  it  among  the  inferior  sort  of  people.     Gentlemen  were,  how- 
ever, still  left  free  to  pursue  it,  until  the  16  Car.  2.   c.  7.  by  which  it  is  enacted, 
that  "if any  person,  by  playing  or  betting,   shall  lose  more  than   100/.   at  one 
time,  he  shall  not  be  compellable  to  pay  his  loss,  and  the  winner  shall   forfeit 
treble  the  value  ;  one  moiety    to  the  *  king,  the  other  to   the  informer."     This 
provision  of  the  legislature  was,  however,  soon  found  to  be  insufficient  to  its 
purpose :  it  was  therefore  enacted,  by  the  stat.  9  Anne,  c.  14.  "  that  all  bonds, 
and  other  securities,  given  for  money  won  at  play,  or  money  lent  at  the  time   to 
play  with,  should  be  utterly  void  ;  that  all  mortgages  or  incumbrances  of  lands, 
made  upon  the  same  consideration,  should  be  and  enure  to  the  use  of  the  mort- 
gagor,  and  that  if  any  person  at  one  time  lose   10Z.  at  play,  he  may,  within 
three  months,  sue  the  winner,  and  recover  it  back  by  action  of  debt  at  law:   and 
in  case  the  loser  does  not,  within  the  time  limited,  sue  and  prosecute,  any  other 
person  may  sue  the  winner  for  treble  the  sum  so  lost  ;  and  the  winner  is  oblig- 
ed and  compellable  to  answer  upon   oath  any  bill  or  bills  filed  against  him  for 
discovering  the  sum  or  sums  of  money,  or  other  thing,  so  won  by  him  at  play." 
Subsequent  statutes  have  superadded    further  penalties  to  restrain  this  fashion- 
able vice,  "  which,"    Sir    William  Blackstone  observes,  (i)  "  may  shew  that 
our  laws  against  gaming  are  not  so  deficient  as  ourselves   and  our  magistrates 
in  putting  these  laws  in  execution."     It  is  observable,  that  the  stat.  16  Car.  2. 
declares,  that  the  contract  for  money  lost  at  play,  and  all  securities  given  for  it, 
shall  be  utterly  void ;  but  the  stat.  9  Anne,  confines  itself  to  the  securities  for 
money  won  or  lent  at  play.     Upon  which  it  has  been  determined,  that  though 
both  the  security  and  the  contract  are  void  as  to  money  won  at  play,  only  the 
security  is  void  as  to  money  lent  at  play  ;  and  that  the  contract  remains,  and 
the  lender  may  maintain  his  action  for  it.  (k)     And  these  acts  having  declared 
the  security  void,  it  may  be  observed,  that  a  bill  of  exchange  given  for  money 
won  at  play  cannot  be  recovered  upon,  though  in  the  hands  of  an  indorsee  for 
a  valuable  consideration,  and  who  is  totally   ignorant  of  the  circumstance  af- 
fecting the  security.  (Z) 

6.  Stockjobbing  Transactions.] — So,  in  order  to  prevent  the  pernicious 
and  destructive  practice  of  stockjobbing,  it  is  enacted  by  the  7  Geo.  2.  c.  8. 
(made  perpetually  by  10  Geo.  2  c.  8.)  "  That  all  contracts  and  agreements  what 
soever  which  shall  be  made  or  entered  into  by  or  between  any  person  or  persons 
whatsoever,  upon  which  any  premium  or  consideration  in  the  nature  of  a  pre- 
mium shall  be  given  or  paid  for  liberty  to  put  upon,  or  deliver,  receive,  ac- 
cept, or  refuse  any  public  or  joint  stock,  or  other  public  securities  whatso- 
ever, or  any  part,  share,  or  interest  therein,  and  also  all  wagers  and  con- 
tracts in  the  nature  of  wagers,  and  all  contracts  in  the  nature  of  puts  and  re- 
fusals, relating  to  the  then  present  or  future  price  or  value  of  any  such  stock  or 
securities,  as  aforesaid,  shall  be  null  and  void  to  all  *intents  and  purposes  what- 


(*)  4  Bl.  Com.  173.  v.  Jacob,  Com.  Rep.  4. 

(A.)  Vide  Robinson  v.  Bland,  2  Burr.  1080.         (1)  Bowyer  v.   Bampton,  2  Stra.  1155.  Lowe 
Barjeau  v.  Walmsley,  2  Stra.  1249.    Hitssey    v.  Waller,  Doug.  736. 

*62  *63 


63  Of  Contracts  declared  void  by  Statute.     [Part  1. 

soever  ;  and  all  premiums,  sum  or  sums  of  money  whatsoever,  which  shall  be 
given,  received,  paid,  or  delivered,  upon  all  such  contracts  or  agreements,  or 
upon  any  such  wagers,  or  contracts  in  the  nature  of  wagers,  as  aforesaid,  shall 
be  restored  and  repaid  to  the  person  or  persons  who  shall  give,  pay,  or  de- 
liver the  same,  who  shall  be  at  liberty,  within  six  months  from  and  after  the 
making  such  contract  or  agreement,  or  laying  any  such  wager,  to  sue  for  and 
recover  the  same  from  the  person  or  persons  to  whom  the  same  is  or  shall 
be  paid  or  delivered,  with  double  costs  of  suit,  by  action  of  debt  founded  on  this 
act,  to  be  prosecuted  in  any  of  his  majesty's  courts  of  record,  in  which  action 
no  essoin,  protection,  wager  of  law,  or  more  than  one  imparlance  shall  be 
allowed  ;  and  it  shall  be  sufficient  therein  for  the  plaintiff  to  allege  that  the  de- 
fendant is  indebted  to  the  plaintiff,  or  has  received  to  the  plaintiff's  use,  the 
money  or  premium  so  paid  or  received,  whereby  the  plaintiffs  action  accru- 
ed to  him,  according  to  the  form  of  this  statute,  without  setting  forth  the  special 
matter." 

Upon  this  statute  it  has  been  determined,  {m)  that  where  A.,  being  employed 
as  a  broker  for  B.  in  stock-jobbing  transactions,  paid  the  differences  for  him, 
a  dispute  arising  between  them  respecting  the  amount  of  A.'s  demand,  the  mat- 
ter was  referred  to  C,  who  awarded  603/.  to  be  due  :  on  which  A.  drew  on  B. 
for  100/.  part  of  the  above,  and  indorsed  the  bill  to  C.  after  B.  had  accepted  it . 
held,  that  C.  could-  not  recover  on  the  bill.  So,  if  a  broker  draw  on  his  em- 
ployer for  differences  paid  for  him  in  stock-jobbing  transactions,  and  the  em- 
ployer accept  the  bill,  and  then  the  broker  indorse  it  to  a  third  person  after  it 
is  due,  the  latter  cannot  recover  on  the  bill,  (n)  But  an  agreement  to  sell  out 
omnium  to  be  afterwards   replaced  in  stock  is  not  within  the  above  act.  (o) 

7.  Lottery.] — All  contracts  or  agreements  for  the  sale  of  any  tickets,  or 
shares  of  tickets,  or  chances,  in  any  private  lottery  ;  or,  for  the  sale  of  any 
chances  of  tickets  in  any  public  lottery  ;  and  all  insurances  of  numbers  in  any 
lottery,  except  by  the  holders  of  tickets  in  the  public  lottery,  are  prohibited  by 
various  statutes.  (p)(49) 

8.  Wager  Policies,  &c] —  In  order  to  prevent  another  species  of  gaming, 
called  wager  policies,  or  insurances  of  interest  or  no  interest,  the  19  Geo.  2.  c. 
37.  s.  1.  enacts,  "  that  no  assurance  shall  be  made  by  any  person  or  persons, 
on  any  ship  or  ships  belonging  to  his  majesty,  or  any  of  his  subjects,  or  on  any 
goods,  merchandizes,  or  effects  laden  or  to  be  laden  on  board  of  any  ship  or 
ships,  interest  or  no  interest,  or  without  further  proof  or  interest  than  the 
policy,  or,  by  way  of  gaming  or  wagering,  or,  without  benefit  of  salvage  to  the 


(m)   Steers  v.  LasMey,  6  Term  Rep.  61.  (p)   Vide  a  Geo.    I.e.  9.  s  43.     6  Geo.  2. 

(„)  Brown  v.  Turner,  7  Term  Rep.  630.         c.  35      12  Geo.  2    c.  23      22  Geo.  3.  c.  17. 

(o)   Oliverson  v.  Coles,  1  Stark.  496.  See  also  Deey  v.  Shee,  2  Term  Rep.  61  i . 


law 


(49)  No  action  can  be  maintained  for  the  price  of  a  ticket  in  a  lottery  not  authorized  by 
■aw  Primer  v  M'Conndl,  cited  in  6  Binn.  329.  Nor  the  price  of  a  ticket  sold  alter  the  time 
limited  for  completing  the  sales.  Barton  v.  Hughes.,  2  Browne,  48.  Nor  for  the  amount  of  a 
nrize  drawn  to  a  ticket  sold  after  such  time  of  limitation.  Biddis  v.  James,  6  Binn.  321.  bee 
Hunt  v.  Knickerbocker,  5  J.  R.  327.  Insurances  of  lottery  tickets  are  against  public  policy, 
and  therefore  void.  Mount  and  Wardell  v.  Waite,  7  J.  R.  434. 


Chap.  4.]  Of  Contracts  declared  void  by  Statute.  64 

insurer ;  and  that  every  euch  insurance  *shall  be  void  to  all  intents  and  pur- 
poses." (q)  And  by  the  fourth  section  of  this  act,  which  was  made  to  prevent 
all  re-assurances,  it  is  enacted,  "  that  it  shall  not  be  lawful  to  make  re-assur- 
ance, unless  the  assurer  shall  be  insolvent,  become  a  bankrupt,  or  die ;  in 
either  of  which  cases,  such  assurer,  his  executors,  administrators  or  assigns, 
may  make  re-assurance  to  the  amount  of  the  sum  before  by  him  assured  ;  pro- 
vided it  shall  be  expressed  in  the  policy  to  be  a  re-assurance. (r) 

By  the  stat.  6  Geo.  1.  c.  18.  8.  12.  it  is  enacted,  that  all  policies  of  insur- 
ance upon  ships  at  sea,  made  by  any  corporation  (other  than  the  two  corpora- 
tions therein  mentioned)  or  by  persons  acting  in  partnership,  shall  be  void,  (s) 
So,  all  insurances  upon  prohibited  goods,  or  relating  to  contraband  trading,  are 
void  by  the  statutes  9  &  10  W.  and  M.  e.  44.  and  33  Geo.  3.  c.  52. (t) 

9.  Smuggling,  &c] — All  contracts  made  in  contravention  of  the  revenue 
laws  of  this  country  are  void.  Thus,  where  an  agreement  was  made  between 
two  parties,  (u)  subjects  of  this  country,  for  the  6ale  and  delivery  of  goods  in 
Guernsey,  for  the  purpose  of  being  smuggled  into  England,  it  was  holden,  that 
the  vendor  could  not  maintain  an  action  for  the  value  of  the  goods.  And  in  a 
subsequent  case,  (v)  it  was  decided,  that  the  circumstance  of  the  vendor  being 
an  inhabitant  of  Guernsey  would  not  alter  the  case,  for  he  was  still  a  subject  of 
this  country.  So,  where  the  defendant,  an  Englishman,  living  in  England,  con- 
tracted with  the  plaintiff,  a  foreigner,  living  at  Lisle,  for  a  quantity  of  lace, 
which  the  plaintiff  knew  was  to  be  smuggled  into  England,  and  the  plaintiff  for 
that  purpose  had  it  packed  in  a  particular  manner  by  the  direction  of  the  defen- 
dant, for  the  more  easy  conveyance  of  it  into  England  without  a  discovery,  the 
Court  held  that  the  contract  was  void  and  that  the  plaintiff  could  not  recover 
the  value  of  the  goods,  (w)  But  the  merely  selling  goods,  knowing  that  the 
buyer  will  make  an  illegal  use  of  them,  is  not  of  itself  sufficient  to  deprive  the 
vendor  of  his  right  of  payment  ;  but  to  affect  him  it  is  necessary  to  show  that 
he  is  either  a  sharer  in  the  illegal  transaction,  or  that  he  aided  and  assisted 
in  the  act  of  smuggling.  Thus,  in  the  case  of  Holman  v.  Johnson,(x)  where 
it  appeared  that  the  plaintiff,  residing  at  Dunkirk,  sold  and  delivered  a  quan- 
tity of  tea  for  the  price  of  which  the  action  was  brought,  to  the  order  of  the  de- 
fendant, knowing  it  was  intended  to  be  smuggled  into  England ;  but  the  plaintiff 
had  no  concern  in  the  smuggling  himself;  it  was  held  by  the  Court  of  King's 
Bench,  that  this  was  a  legal  contract,  and  that  an  action  might  be  supported 
on  it:  and  Lord  Mansfield,  in  giving  judgment,  lays  it  down,  *that  if  goods  are 
sold  abroad  to  be  delivered  in  England,  where  they  are  prohibited,  the  contract 
is  void,  and  the  buyer  shall  not  be  liable  to  an  action  for  the  price,  because  it 
would  be  an  inconvenience  and  prejudice  to  the  state  if  such  an  action  could  be 


(</)  For  the  esses  upon  this  stat.  vide  Park     Vide  post,  Part  II.  tit.  Sale  of  Goods,  &c. 
on  Insurance,  chap.  14.  (v)  Clugas  v.  Penaluna,  4  T.  E.  4C6. 
(r)  Ibid.   chap.  15.  (w)Waymell  v.  Reed,   5  T.  R.  599. 
(s)  Ibid.  chap.  1.  (x)  Cowp.  341.     See  also  Hodgson  v.  Tern- 
it)  Ibid.  chap.  12,  13.  pie,  5  Taunt.  Rep.  1S1.  Accord, 
(u)  Biggs  v.  Lawrence,   3  Term  Rep.  454. 

9  *64  *65 


65  Of  Contracts  declared  void  by  Statute.        [Parti. 

maintained."  And  accordingly,  in  a  subsequent  case  of  Biggs  v.  Lawrence,  (y) 
the  defendant,  who  lived  in  Cornwall,  sent  an  order  to  one  of  the  plaintiffs,  resi- 
ding in  Guernsey,  who  was  a  partner  with  three  other  plaintiffs,  all  living  in 
England,  for  some  brandy,  which  he  directed  to  be  delivered  to  three  captain  of 
a  smuggling  vessel,  and  some  of  the  brandy  was  delivered  at  Guernsey,  and  the 
rest  at  sea  ;  the  whole  being  put  by  the  partner  at  Guernsey  into  half-ankers> 
and  ready  slung  for  the  purpose  of  smuggling,  but  it  was  brought  into  England 
at  the  risk  of  the  defendant:  the  Court  held  that  the  action  could  not  be  sup- 
ported. 

So,  where  prohibited  drugs  were  sold  knowingly  to  be  used  in  brewing,  such 
sale  was  declared  void :  thus,  in  the  case  of  Langton  v.  Hughes,  (z)  which  was 
an  action  for  goods  sold  and  delivered  by  a  druggist  to  a  brewer,  the  seller 
knowing  at  the  time  of  the  sale  that  they  were  to  be  used  in  the  brewery.  The 
goods  consisted  of  Spanish  juice,  isinglass,  ginger,  and  other  articles,  the  use  of 
which  by  brewers  is  contrary  to  the  provisions  of  42  Geo.  3.  c.  38.,  by  which 
they  are  prohibited  from  using  any  thing  but  malt  and  hops  in  the  brewing  of 
beer.     The  Court  held  that  the  action  could  not  be  sustained. 

10.  Trading  to  the  East  Indies.]  — By  the  stat.  7  Geo.  1.  c.  21.  s.  2., 
''All  contracts  made  by  His  Majesty's  subjects  for  loading  any  ship  in  the  ser- 
vice of  foreigners  with  a  cargo  to  trade  to  the  East  hidies,  are  declared  void." 
And  therefore,  to  an  action  of  debt  on  a  bond,  the  defendant  pleaded  that  it  had 
been  unlawfully  agreed  between  the  plaintiffs  and  the  defendant,  that  the  plain- 
tiffs should  sell  and  deliver  to  the  defendant  certain  goods,  to  be  shipped  by  the 
defendant  in  London,  to  be  carried  to  Ostend,  and  there  to  be  shipped  on  board 
other  vessels  to  the  East  Indies.  The  Court  determined,  that  the  plaintiffs 
must  be  deemed  principals  in  the  transaction,  and  that  the  case  was  directly 
within  the  act  of  parliament,  (a) 

11.  Forestalling,  Regrating,  &c]  —  Forestalling,  regrating,  and  engross- 
ing are  treated  by  the  law  as  offences  against  public  trade,  and  are  on  that  ac- 
count illegal.  Forestalling  is  described  in  the  stat.  5  &  6  Edw.  6.  c.  14.,  to  be 
the  buying  or  contracting  for  any  merchandize  or  victual  coming  in  the  way  to 
market,  or  dissuading  persons  from  bringing  their  goods  or  provisions  there,  or 
persuading  them  to  enhance  the  prices  there  ;  regrating,  to  be  the  buying  of 
corn  or  other  dead  victual  in  any  market,  and  selling  it  again  in  the  same  mar- 
ket, or  within  four  *miles  of  the  place  ;  and  engrossing,  the  getting  into  one's 
possession,  or  buying  up,  large  quantities  of  corn  or  other  dead  victuals,  with 
intent  to  sell  them  again.  This  statute  was  repealed  by  12  Geo.  3.  c.  71.  ;  but 
forestalling,  regrating,  and  engrossing  are  still  offences  at  common  law  ;  and  it 
has  been  decided  that  selling  corn  in  sheaves  is  illegal,  as  being  in  effect  fore- 
stalling the  market.(6)  But  a  sale  of  growing  crops  of  corn  or  of  hops  is  not 
contrary  to  law.  {c) 

(y)  3  Term  Rep.  454.  Et  vide  Part  II.  c.  1.  meree,  1  vol.  666. 

(s)  1  Maule  &  Selw.  593.  (b)  Hudham's  case,  3  Inst.  197. 

(a)  Lightfoot  y.  Tenant,  1  Bos.  &  Pul.   551.  (c)   Bri.itoic  v.   Waddington,   2  New  Rep. 

Vide  53  Geo.  3.  <•.  155.,  and  Chitty  on  Coin-  355. 
*66 


Chap.  4c]     Of  Contracts  declared  void  by  Statute.         66 

12.  Sale  of  Bricks.] — The  stat.  17  Geo.  3.  c.  42.,  which  requires  bricks 
for  sale  to  be  of  certain  dimensions,  and  gives  a  penalty  for  the  breach  of  that 
regulation,  was  passed  to  protect  the  buyer  against  the  fraud  of  the  seller ; 
bricks  therefore  sold  and  delivered  under  the  statutable  size  unknown  to  the 
buyer,  the  seller  cannot  recover  the  value  of  them ;  for  the  policy  of  the  act 
was  to  protect  the  buyer  against  the  fraud  of  the  seller,  and  this  can  only  be 
done  by  holding  that  the  latter  shall  not  recover  the  value  of  such  bricks  so 

sold.(d) 

13.  Treating  at  Elections.]— By  the  statute  7&8W.  3.  c.  4.  (which 
was  made  to  prevent  all  species  of  bribery  and  corruption  at  elections  for  mem- 
bers of  parliament,)  it  is  enacted,  "  That  no  person  after  the  teste  of  the  writ 
to  the  sheriff,  shall  before  his  election,  directly  or  indirectly,  give,  present,  or 
allow  to  any  person  or  persons  having  voice  or  vote  in  such  election,  any  mon- 
ey, meat,  drink,  entertainment,  or  provision  ;  or  make  any  present,  gift,  reward, 
or  entertainment ;  or  shall  at  any  time  hereafter  make  any  promise,  agreement, 
obligation,  or  engagement,  to  give  or  allow  any  money,  meat,  drink,  provision, 
present,  reward,  or  entertainment,  to  or  for  any  such  person  or  persons  in  par- 
ticular, or  to  any  such  county,  city,  &c,  or  to  or  for  the  use,  &c.  of  any  such 
person,  in  order  to  be  elected,  or  for  being  elected  to  serve  in  parliament  for 
such  county,  city,  &c." 

Upon  this  statute  it  has  been  holden,(e)  that  an  innkeeper  furnishing  provis- 
ions for  voters,  at  the  request  of  a  candidate,  after  the  teste  of  the  writ,  cannot 
recover  the  expences  of  such  provisions  against  the  candidate.  And  non-resi- 
dent voters  are  equally  within  the  meaning  of  this  act  as  resident  voters,  (f) 

14.  Bankrupts.] — All  agreements  by  a  bankrupt  with  a  creditor  to  pay 
money,  Sfc.for  signing  his  certificate,  are  declared  void  by  the  stat.  5  Geo.  2. 
c.  30.  s.  11.,  which  enacts,  "  That  every  bill,  note,  contract,  agreement,  or 
other  security  whatsoever,  to  be  made  or  given  by  any  bankrupt,  or  by  any 
other  person,  unto,  or  to  the  use  of,  or  in  trust  for  any  creditor  or  creditors,  or 
for  the  security  of  the  payment  of  any  debt  or  sum  of  money  due  from  such 
bankrupt  at  the  time  of  his  becoming  *bankrupt,  or  any  part  thereof,  between 
the  time  of  his  becoming  bankrupt  and  such  bankrupt's  discharge,  as  a  consid- 
eration, or  to  the  intent,  to  persuade  him,  her,  or  them  to  consent  to  or  sign  any 
such  allowance  or  certificate,  shall  be  wholly  void  and  of  no  effect ;  and  the 
monies  thereby  secured  or  agreed  to  be  paid  shall  not  be  recovered  or  recover- 
able." (g)  (50) 

(</)  Law  v.  Ilndson,    11  East  Rep.  300.  Bat     See  also  the  Bribery  Act,  2  Geo.  2.  c.  24. 
see  Johnson  v.  Hudson,  Ibid.  ISO.  (/)  1  Campb.  Rep.  550.  in  notis. 

(e)  Ribbans  v.  Crickett,  1  Bos.  &  Pul.   264.         («•)  Vide  Smith  v.  Bromley,  Doug.  696. 

(50)  A  promise  by  the  defendant,  to  pay  the  plaintiff  a  sum  of  money,  in  consideration  that 
the  plaintiff  would  not  oppose  his  discharge  under  the  insolvent  act,  is  illegal  and  void. 
Waite  v.  Harper,  2  J.  R.  386.  See  Bruce  v.  Lee,  4  J.  R.  410.  Wiggin  v.  Bush,  12  J.  R. 
306.  Tuxbury  v.  Miller,  19  J.  R.  31 1.  So,  ifa  third  person  give  his  note  for  a  part  of  the  debt 
due  to  a  creditor,  to  induce  him  to  sign  the  insolvent's  petition,  such  note  is  void,  it  being 
against  the  polirv,  and  in  fraud  of,  the  insolvent  law.  Yeomans  v.  Chatlerton,  9  J.  R.  295.  And 

♦67 


67  Of  Contracts  declared  void  by  Statute.     [Part  1. 

15.  Sale  of  Liquors.  ] — By  the  statute  24  Geo.  2.  c.  40.  s.  12.,  (which  was 
made  for  the  purpose  of  preventing  the  pernicious  effects  of  dram-drinking  and 
selling  liquors  in  small  quantities,)  it  is  enacted,  "  That  no  person  or  persons 
whatsoever  shall  be  entitled  unto,  or  maintain  any  cause,  action,  or  suit  for,  or 
recover  either  in  law  or  equity,  any  sum  or  sums  of  money,  debt,  or  demands 
whatsoever,  for  or  on  account  of  any  spirituous  liquors,  unless  such  debt  shall 
have  really  been  and  bona  fide  contracted  at  one  time,  to  the  amount  of  20*.  or 
upwards  ;  nor  shall  any  particular  article  or  item  in  any  account  or  demand  for 
distilled  spirituous  liquors,  be  allowed  or  maintained,  where  the  liquors  deliver- 
ed at  one  time,  and  mentioned  in  such  article  or  item,  shall  not  amount  to  the 
full  value  of  20s.  at  the  least,  and  that  without  fraud  or  covin." 

But  this  statute  does  not  extend  to  liquors  purchased  for  the  purpose  of  being 
gold  again,  (h) 

(h)  Vide  Peaked  case,  N.  P.    180.,  el  vid.  post,  Part  II.  tit.  Sale  of  Goods, 

bo,  if  for  the  same  purpose,  the  insolvent  give  his  note  to  a  creditor,  for  the  full  amount  of 
his  debt,  with  a  blank  for  the  date,  to  be  filled  up  after  his  discharge,  the  note  is  fraudulent 
and  void.  Payne  v.  Eden,  3  CninP«  213, 


Chap.  5.]     Statute  of  Limitation  of  Actions,  fyc.  68 


^CHAPTER  V. 


OF  THE  STATUTE    OF    LIMITATIONS,    OR   WITHIN  WHAT  TIME  AN 
ACTION  UPON  PROMISES  MUST  BE  BROUGHT. 

By  the  statute  21  Jac.  1.  c.  16.  s.  3.  it  is  enacted  and  declared,  that  "  all  ac- 
tions upon  the  case  (which  comprehends  contracts,  agreements,  and  promises) 
other  than  such  accounts  as  concern  the  trade  of  merchandize  between  mer- 
chant and  merchant,  their  factors  or  servants,  shall  be  commenced  and  sued 
within  six  years  next  after  the  cause  of  such  action  or  suit,  and  not  after.  Never- 
theless, if  any  person  or  persons,  entitled  to  any  of  the  said  actions,  shall  be,  at 
the  time  of  any  such  cause  of  action  accrued,  within  the  age  of  twenty-one 
years,  feme  covert,  non  compos  mentis,  imprisoned,  or  beyond  the  seas,  then 
such  person  or  persons  shall  be  at  liberty  to  bring  the  same  action,  within 
such  time  as  is  before  limited,  after  their  coming  to  or  being  of  full  age, 
discovert,  of  sane  memory,  at  large,  and  returned  from  beyend  the  seas." 
And  by  the  statute  4  Ann.  c.  16.  s.  19.  it  is  also  declared,  that,  "  if  any  person  or 
persons  against  whom  there  shall  be  any  such  cause  of  suit  or  action  for  sea- 
men's wages,  or  any  of  the  causes  of  action  mentioned  in  the  21  Jac.  1., 
shall  be,  at  the  time  of  any  such  cause  of  suit  or  action  accrued,  beyond  the  seas, 
then  the  person  or  persons  entitled  to  such  suit  or  action,  shall  be  at  liberty  to 
bring  the  said  actions  against  such  person  and  persons,  after  their  return  from 
beyond  the  seas,  within  such  times  as  are  respectively  limited  for  the  bringing  of 
the  said  actions  by  this  act,  and  by  the  said  other  act  of  21  Jac.  1." 

Upon  these  statutes  it  has  been  determined,  that  if  the  plaintiff  be  in  England 
when  the  cause  of  action  accrues,  though  he  afterwards  go  abroad,  the  time  of 
limitation  begins  to  run  ;  so  that  if  he  or  his  representatives  do  not  sue  within 
six  years,  the  statute  is  a  bar.(a)  (51)  And  if  one  of  several  plaintiffs  be  abroad, 
and  the  others  in  England,  the  action  must  be  brought  within  six  years  after  the 
cause  of  action  arises,  (b) 

It  has  also  been  determined,  that  the  statute  of  limitations  extends  to  persons 
in  Scotla?id.(c)  But  if  the  plaintiff  or  defendant  be  abroad,  or  beyond  the  sea, 
at  the  time  when  the  cause  of  action  accrues,  the  statute  will  not  begin  to  run 


(«)  1  Wils.  134.  (c)   l  Bl.Rcp.  286. 

(6)  4  Term  Rep.  516. 


(51)  It  is  a  principle  sanctioned  by  all  the  authorities,  that  [when  once  a  statute  of  limita- 
tions begins  to  run,  it  will  continue,  notwithstanding  any  supervenient  disability.     Peck  v. 
Rundall,  1  J.  R.  165.  Fitzhugh  v.  Randall,  2  Hen.  &  Munf.  289.  Dow  v.  Warren,  6  Mass.  R<i>. 
328.  Waldenv.  Gratz,  1  Wheat.  292.     Rogers  v.  Hill'.ioiise,  3  Conn.  Rep.  3SS.    M'CaUaugh  v. 

*68 


69  Statute  of  Limitation  oj  Actions  [Part  I. 

till  their  return  to  this  country,  (d)  (52)  And  if  *the  plaintiff  be  a  foreigner,  and 
do  not  come  to  England  for  a  great  many  years  after  the  cause  of  action  arises, 
he  still  has  six  years  after  his  coming  hither  to  bring  his  action. (e)  (53)  And 
if  he  never  come  to  England  himself,  he  has  always  a  right  of  action  while 
he  lives  abroad ;  and  after  his  death,  his  executors  or  administrators  are  in  the 
same  situation,  (f) 

The  statute  cannot  be  a  bar  in  any  case,  unless  the  time  of  limitation  is  ex- 
pired after  there  has  been  a  complete  cause  of  action  ;  as,  if  a  man  promise  to 
pay  ten  pounds  to  J.  S.  when  he  comes  from  Rome,  or  when  he  marries  ;  and 
ten  years  after,  J.  S.  marries,  or  comes  from  Rome,  the  right  of  action  accrues 
from  the  happening  of  the  contingency,  from  which  time  the  statute  will  begin 
to  run,  and  not  from  the  time  of  the  promise,  (g)  (54) 

One  of  the  objects  of  the  statute  of  James,  for  limiting  the  period  in  which  the 
action  should  be  brought,  was  to  protect  persons  from  long  protracted  claims, 
when  the  vouchers  and  documents,  and  indeed  all  traces  of  evidence  relating 
thereto  might  be  lost,  and  the  party  left  wholly  undefended  by  the  improper 
neglect  of  the  claimant.  Another  more  important  object  was  to  prevent  the 
mischief  which  might  happen  in  the  commission  of  perjury  in  endeavouring  to 
support  and  establish  such  dormant  claims.  As,  however,  many  just  claims 
may  lie  dormant  either  from  negligence,  or  from  particular  causes  with  regard 
to  the  situation  and  circumstances  of  the  parties,  it  has  been  determined,  that  if 
after  the  six  years  have  elapsed,  the  party,  upon  whom  the  claim  is  made,  eith- 
er expressly  promises  or  acknowledges  the  existence  of  the  debt  or  contract, 
or  promises  to  pay  the    debt  or  perform  the  contract,  such  acknowledgment  or 

(d)  2  Stra.  836.     Fitzgib.  81.  cases  on  this  statute  are  collected  and  digest- 

(e)3  Wils.  145.  ed. 

(/)  Vid.  Tidd's  Prac.   16.  7  ed.  where  the         (g)  Godb.  437.  1  Lev.  48.  1  H.  Bl.  631. 


Speed,  3  M'Cord,  455.  In  -Cook  v.  Wood,  1  M'Cord,  139.,  which  was  an  action  of  trespass 
brought  to  try  the  title  of  land,  the  court  were  equally  divided  in  opinion,  as  to  the  propriety 
of  applying  the  general  rule,  in  that  case. 

(52)  The  spirit  of  the  rule  contained  in  the  text,  has  been  observed  by  the  courts  of  our 
own  country.  Dvrightv.  Clark,  7  Mass.  Rep.  515.  Fowler  v.  Hunt,  10  J.  R.  464.  Four  v. 
RoberdeaxCs  Exr.  3  Cranch,  174.  Rugbies  v.  Keeler,  3  J.  R.  261.  But  the  debtor's  return 
into  the  commonwealth,  from  which  the  statute  will  begin  to  run,  must  not  be  clandestine, 
but  so  open  and  public,  that  the  creditor,  by  the  use  of  reasonable  diligence,  may  obtain  secu- 
ritv  for  his  debt  by  arresting  the  debtor's  body.  While  v.  Bailey,  3  Mass.  Rep.  271.  Fowler 
v.  Hunt,  ut  supra."  See  Byrne  v.  Crowninshield,  1  Pick.  263.  In  Pennsylvania  it  has  been  de- 
cided, that  a  citizen  of  South  Carolina,  was  not  within  the  proviso  of  the  act  of  1713,  in  favor 
of  "  persons  bevond  sea  at  the  time  the  cause  of  action  accrued."  Ward  v.  Hallam,  2 
Dall.  217.  S.  C.  1  Ycates,  329.  See  also,  Bond  v.  Jay,  7  Cranch,  350.  The  terms  "  beyond 
seas"  in  the  proviso  of  the  statute  of  limitations,  are  equivalent  to,  without  the  limits  of  the 
slate  where  the  statute  is  enacted  ;  and  the  party  who  is  without  those  limits  is  entitled  to 
the  benefit  ofthe  exception.  Murray  v.  Baker,  3  Wheat.  541.  Shelby  v.  Guy,  11  Wheat.  361. 
Forbes  v.  Foot,  2  M'Cord,  331.  And  where  both  parties  are  beyond  sea,  without^any  ofthe 
United  States,  when  the  cause  of  action  accrues,  and  afterwards,  both  return' within  the 
Commonwealth,  the  statute  will  begin  to  run  when  both  have  returned,  although  both  be 
not  within  the  commonwealth  at  the  same  time  ;  because  the  impediment  may  be  removed 
as  to  one,  and  remain  as  to  the  other ;  and  after  it  has  been  removed  as  to  both,  the  statute 
commences  its  operation.     Vans  v.  Higginstm,   10  Mass.  Rep.  29. 

(53)  See  Chonvpmr.  Mason,  1  Gall.  342.     Uuggla   ■  .  Keela;  "  .T.  R.  261. 

(54)  Sec  po  at,  " 

•69 


Chap.  5.]         Upon  Contracts  and  Promises.  oy 

promise  will  take  the  case  out  of  the  statute,  and  entitle  the  party  claiming 
to  recover.  (55)  And  a  conditional  promise  has  been  liolden  sufficient  for  this 
purpose,  as  well  as  an  absolute  one  ;  as  where  the  defendant  said  to  the  plain- 
tiff, Prove  your  debt  and  I  will  pay  it.  (A)  It  was  formerly  doubted  whether  a 
mere  acknowledgment  of  the  debt,  without  a  promise  of  payment,  was  sufficient 
to  take  the  case  out  of  the  statute  ;  such  an  acknowledgment  being  only  con- 
sidered as  evidence  of  a  promise ;  as  in  trover,  where  a  demand  and  refusal 
are  not  holden  to  be  a  conversion,  but  only  evidence  of  it.  (i)  To  prevent  the  op- 
eration of  the  statute,  it  is,  in  general,  necessary  to  prove  an  express  acknowledg- 
ment of  the  existence  of  a  debt,  (k)  And  where  a  defendant  having  entered  into 
a  guarantie  in  writing,  and  become  liable  upon  it  at  the  period  of  more  than  six 
years  before  the  commencement  *of  the  suit,  verbally  promised,  within  six  years, 
that  the  matter  should  be  arranged  ;  it  was  determined,  that  the  statute  of  frauds 
having  been  once  satisfied  by  the  original  promise  being  in  writing,  it  was  not 
necessary,  in  order  to  take  the  case  out  of  the  statute  of  limitations,  that  the 
latter  promise  should  also  be  in  writing. (x)  If  an  agent  has  been  employed  to 
pay  money  for  work  done  for  the  defendant,  and  the  workmen  are  referred  to 
him  for  payment,  an  acknowledgment  or  promise  by  him  to  pay  will  take  the 
case  out  of  the  statute  of  limitations.  {I)  So,  the  admission  of  the  wife,  who 
was  accustomed  to  conduct  her  husband's  business,  is  sufficient  to  take  the 
case  out  of  the  statute,  in  an  action  against  the  husband. (in)  And,  in  an  action 
against  a  husband,  for  goods  supplied  to  his  wife  for  her  accommodation, 
while  he  occasionally  visited  her,  a  letter  written  by  the  wife,   acknowledging 

(A)lLd.  Raym.  389.422.     Carth.  470  12         Sel.  457.  2  Bur.  1099.  5  Bur.  2630.  Cowp. 
Mod.  224.  548. 

(i)  See  Tidd's  Prac.  21.  (x)  1  Barn.  &  Aid.  690. 

(k)  Vide  Roiocroft  v.  Lomas,  4  Maule  &         (I)  5  Esp.  Rep.  145. 

(»i)  1  Holt,  Ni.  Pri.  591. 

(55)  It  has  frequently  been  decided,  that  an  acknowledgment  of  a  debt  barred  by  the  stat- 
ute of  limitations,  takes  the  case  out  of  the  statute,  and  revives  the  original  cause  of  action. 
This  general  rule  is,  undoubtedly,  correct.  But  still,  the  question  will  always  arise,  whether 
the  evidence  be  such  as  to  admit  of  its  application.  This  uncertainty  arises,  chiefly,  from 
the  diversity  of  circumstances  usually  attending  cases  of  this  description.  It  is  obvious, 
therefore,  that  no  precise  rule  of  construction,  which  will  govern  in  all  cases,  can  be  given  : 
But,  from  a  view  of  all  the  authorities  upon  this  subject,  the  better  opinion  seems  to  be,  that  to 
take  the  case  out  of  the  statute,  there  must  either  be  an  express  promise  of  payment ;  or  at 
least,  an  admission  of  a  present  existing  debt:  A  simple  acknowledgment  of  the  justice  of  the 
original  claim,  will  be  deemed  insufficient.  Thus,  in  the  case  of  Clementson  v.  Williams,  8 
Cranch,  72.,  which  was  an  action  of  assumpsit  against  two  partners,  the  statute  of  limitations 
being  pleaded  in  bar ;  and  the  plaintiff's  claim  being  presented  to  one  of  the  partners,  he 
stated  that  "the  account  was  due,  and  that  he  supposed  it  had  been  paid  by  his  partner,  but 
had  not  paid  it  himself,  and  did  not  know  of  its  being  ever  paid  ;"  it  was  held  that  the  evi- 
dence was  not  sufficient  to  take  the  case  out  of  the  statute.  See  Wetzell  v.  Bussard,  1 1  Wheat. 
309.  Bell  v.  J\lmriso7i,  1  Peters,  351.  Robhins  v.  Otis,  1  Pick.  368.  Beitz  v.  Fuller,  1  M'Cord, 
541.  Lee  v.  Perry,  3  M'Cord,  552.  Sands  v.  Gelston,  15  J.  R.  511.  Lawrence  v.  Hopkins,  13 
J.  R.  288.  Mosher v. Hubbard,  Id.  510.  Fiskx.Needham,  11  Mas.  Rep.  452.  Coioanv.  Magauran, 
Wallace,  66.  Guier  v.  Pearce,  2  Browne,  35.  Smith  v.  Freel,  Addis.  291.  Brown  v.  Camp- 
bell, 1  Serg.  &  R.  176.  Miles  v.  Moodie,  3  Serg.  &  R.  211.  Henxoocd  v.  Cheeseman,  3  Serg. 
&R.  500.  Thompson  v.  Peter,  12  Wheat.  565.  Jones  v.  Moore,  5  Binn.  573.  Danforth  v. 
Culver,  11  J.  R.  146.  Lord  v.  Harvey,  3  Conn.  Rep.  370.  If  the  acknowledgment  of  a  debt 
barred  by  the  statute,  be  conditional,  a  performance  of  the  condition  must  be  shown. 
Dean  v.  Pitts,  10  J.  R.  35.    See  further,  on  this  point,  note  (21)  ante.     It  has  been  held,  that 

*70 


70  Statute  of  Limitation  of  Actions  [Parti. 

the  debt,  within  six  years,  was  deemed  admissible  evidence  for  that  purpose.(n) 
So,  an  acknowledgment  by  one  of  several  drawers  of  a  joint  and  several  prom- 
issory note,  will  take  the  case  out  of  the  statute,  as  against  any  one  of  the 
other  drawers,  in  a  separate  action  on  the  note  against  him.(o)  (56)  But 
where  one  of  two  joint  drawers  of  a  bill  of  exchange  becomes  bankrupt,  and 
the  indorsees  proved  a  debt  under  his  commission  beyond  the  amount  of  the  bill, 
for  goods  sold,  &c,  and  exhibited  the  bill  as  a  security  they  then  held  for  their 
debt,  and  afterwards  received  a  dividend  ;  the  Court  held,  in  an  action  by  the 
indorsees  of  the  bill  against  the  solvent  partner,  that  the  statute  of  limitations 
was  a  good  defence,  although  the  dividend  had  been  paid  by  the  assignees  of 
the  bankrupt  partner  within  six  years.(p) 

If  a  letter  be  written  by  a  defendant  to  the  plaintiff's  attorney,  on  being  serv- 
ed with  a  writ,  couched  in  ambiguous  terms,  neither  expressly  admitting  nor 
denying  the  debt,  it  should  be  left  to  the  jury  to  consider  whether  it  amounts  to 
an  acknowledgment  of  the  debt.(?)  (57)     And  if  there  be  a  mutual  account  of 
any  sort  between  the  plaintiff  and  defendant,  for  any  item  for  which  credit  has 
been   given  within  six  years,  that  is  evidence  of  an  acknowledgment   of  there 
being  such  an  open  account  between  the  parties,  and  of  a  promise  to  pay  the 
balance,  as  to  take  the  case  out  of  the  statute.(r)  (58)     So,  if  a  defendant  ad- 
mit the  existence  of  a  debt,  which  would  otherwise  be  barred  by  the  statute  of 
limitations,  but  claim  to  be  discharged  by  a  written  instrument,  which  does  not 
amount   to  a   legal  discharge,  he  shall  be   bound  by  his  admission,  (s)     And 
where  the  acceptor  of  a  bill  of  exchange   acknowledged   his   acceptance,  and 
that  he  had  been  liable,  but  said  that  "  he  was  not  liable  then  because  *it    was 
out  of  date,  and  that  he  would  not  pay  it,  and  that  it  was  not  in  his  power  to  pay 
it :"  this  was  deemed  sufficient  to  take  the  case  out  of  the  statute,  (t)     So,  it  is 
sufficient  to  prove,  that  upon  a  demand  being  made  by  a  seaman  on  the  owner 
of  a  ship,  for  wages  which  had  accrued  during  an  embargo,  he  said,  "if  others 
paid,  he  should  do  the  same."(u)     And  a  promise  by  a  defendant  in  embarrass- 
•  ed  circumstances,  to  pay  a  debt  by  instalments,  if  time  were  given  him,  is  suf- 


00  1  Campb.  394.  00  6  Durnf.  &  East,  189. 

(o)  Dou<r.  652,  3.  2  H.  Bl.  340.  But  sec     (s)  6  Esp.  Rep.  66. 
1  Barn.  &  Aid.  463.  (0  1 6  East,  420. 

(p)  1  Barn.  &  Aid.  463.  (w)  4  Campb.  135. 

(q)  2  Durnf.  &  East,  760. 


a  recital  in  a  deed  is  sufficient  evidence  to  take  a  case  out  of  the  statute  of  limitations.  King 
v.  Riddle,  7  Cranch,  168.  M  «     , 

(56)  See  Johnson  v.  Beardslee,  15  J.  R.  3.  Beitz  v.  Fuller,  1  M'Cord,  541.  It  seems  not 
to  be  well  settled,  whether  the  acknowledgment  of  one  partner,  alter  the  dissolution  of  the 
partnership,  of  a  partnership  debt  barred  by  the  statute  of  limitations,  will  conclude  the  other 
partners  ?  The  question  was  decided  in  the  affirmative  in  Smith,  v.  Ludlow,  6  J.  R.  267.  con- 
tra, Bell  v.  Morrison,  1  Peters,  351. 

(57)  See  Johnson  v.  Beardslee,  15  J.  R.  3.  Where  there  is  no  dispute  as  to  the  facts  which 
are  relied  upon  to  take  a  case  out  of  the  statute,  the  effect  of  the  evidence  is  a  question  ot 
law  for  the  court  to  decide  ;  but  it  is  otherwise,  if,  trom  the  evidence,  the  tacts  are  doubtful. 
Clarke  v.  Butcher,  9  Cowcn,  674.  See  Bell  v.  Morrison,  1  Peters,  351,  362.  Miles  v.  Moodie, 
3  Serg.  &  R.  211.    Cowan  v.  Magauran,  "Wallace,  66. 

(58)  See  Cogswell  v.  Dolliver,  2  Mass.  Rep.  217. 
*71 


Chap.  5.]  Upon  Contracts  and  Promises.  71 

ficient  to  take  a  case  out  of  the  statute,  (v)     But  a  note  written  by  a  debtor  to 
an  executor,  "  that  the  testator  always  promised  never  to  distress  him  for  the 
debt,"  is  not  evidence  of  a  promise  to  pay  it,   made  to  the   testator  within  six 
years,  (w)     And  where  the  acknowledgment  was,  "  I  had  the   money,   but  the 
testatrix  gave  it  to  me  ;"  the  latter  words  were  held  to  qualify   the   generality 
of  the  first  admission,  and  not  to  amount  to  a  new  promise  or   confession  of  the 
defendant,  sufficient  to  take  it  out  of  the  statute,  (a?)   So,  where  the  defendant 
had  said  to  the  plaintiff,  "  I  owe  you  not  a  farthing,  for  it  is  more  than  six  years 
since ;"  the  Court  held,  that  this  was  not  to  be  left  to  the  jury,  as  evidence  of 
an  admission,  to  take  a  debt  out  of  the  statute  of  limitations,  (y)      In  like  man- 
ner a  qualified  admission,  by  a  party  who  relies  on  an  objection,  which  would 
at  any  time  have  been  a  good  defence  to  the  action,  does  not  take  the  case  out 
of  the  statute,  (z)     So,  where  a  defendant  on  being  applied  toby  the  plaintiff's 
attorney,  for  the  payment  of  a  debt,  wrote  in  answer,  that  he  "  would   wait  on 
the  plaintiff,  when  he  should  be  able  to  satisfy  him  respecting  the  misunderstand- 
ing which  had  occurred  between   them ;"  this   was   holden  not  to  be   such  an 
acknowledgment  of  a  debt,  as  to  take   the  case  out  of  the  statute ;  and   that 
6uch  evidence  ought  not  to  be  left  to  a  jury,  as  ground  to  infer  a  new  promise 
to  pay.  (a)     So,  in  an  action  of  assumpsit  by  an  attorney,  to  recover  his  charges 
relative   to  the  grant  of  an   annuity,  evidence  that  the  defendant  said,    "  he 
thought  it  had  been  settled  when  the  annuity  was  granted,  but  he  had  been  in 
so  much  trouble  since,  that  he  could  not  recollect  any  thing  about  it,"  was  hold- 
en  not  to  be  a  sufficient  acknowledgment  of  the   debt  to  take  it  out  of  the  stat- 
ute of  limitations,  and  ought  not  to  be  left  to  the  jury,  as   evidence  of  an  ad- 
mission of  such  debt,  although  the   plaintiff  proved  his  bill  was  not  paid  at  the 
time  of  granting  the  annuity,  (b)  And  where  the  defendant  on  being  applied  to 
for  payment,  said,   "  I  think  I  am  bound  in  honour  to  pay  the  money,  and  shall 
do  it  when  I  am  able  ;"  Lord  Kenyon  ruled,  that  it  was  a  conditional  promise 
only,  and  that  the  plaintiff  was  bound  to  shew  that  the  defendant  was  of  suffi- 
cient ability  to  pay.(r) 

*If  a  cause  of  action,  arising  from  the  breach  of  a  contract  to  do  an  act  at  a 
specific  time,  be  once  barred  by  the  statute  of  limitatiens,  a-' subsequent  ac- 
knowledgment by  the  party,  that  he  broke  the  contract,  will  not,  it  seems, 
take  the  case  out  of  the  statute,  (d) 

The  exception  in  the  statute  of  James,  touching  such  accounts  as  concern 
trade  of  merchandize  between  merchant  and  merchant,  their  factors  and  ser- 
vants, extends  to  those  cases  only  where  there  are  mutual  accounts  and  recip- 
rocal demands,  and  where  such  accounts  are  current  and  open,  and  not  to 
accounts  stated  between  them,  (e)  for  no  other  actions  are  excepted  but  actions 


(v)  2  Stark.  Ni.  Pri.  98.  (6)  ]  Mo.  Rep.  340. 

(w)6  Taunt.  210.  (c)  4  Esp.  Rep.  36.     But  see  2  Stark.  99.  in 

(x)  b  Lsp.  Rep.  67,  8.  notis,  semb.  Contra ;  and  2  H.  Bl.  1 16. 
(y)  3  Taunt.  380. ;  and  see  4  Maule  &  Sel.       (d)  2  Campb.  160.  ;  and  see  Peake's  Erid. 

457-  205.  1  Barn.  &  Aid.  92. 

ft  }  ^rk-J^  Pri-  7-  W  Bul>  N-  P-  14D-  Sir  W.  Jones,  401. 
(a)  1  Holt,  Ni.  Pn.  380. 

10  -72 


72  Statute  of  Limitations  of  Actions         [Part  I. 

of  account. (/)  (59)  It  has  been  supposed,  that  by  the  effect  of  the  above 
exception,  there  can  be  no  limitation  to  a  merchant's  open  and  unsettled  ac- 
count :  this  opinion,  however,  appears  erroneous  ;  for,  if  there  is  no  item  in 
the  account,  or  an  acknowledgment  of  the  debt  within  six  years,  the  statute 
will  take  effect ;  but  if  the  last  item  of  the  account  is  within  six  years,  that 
preserves  all  the  preceding  items  from  the  operation  of  the  statute,  (g)  And 
from  these  decisions  it  should  seem,  that  merchants'  accounts  do  not  stand 
upon  any  better  ground,  in  regard  to  the  statute,  than  those  of  others.  It 
should  also  be  observed,  that  the  exception  extends  to  all  merchants,  as  well 
inland  as  to  those  trading  beyond  sea.  (h)  And  the  effect  of  the  exception  has 
also  been  extended  to  other  tradesmen,  and  persons  having  mutual  dealings. (i) 
But  in  all  these  cases,  the  accounts  must  be  mutual,  with  reciprocal  de- 
mands   on  each  side,  and  not  as  in  the  case  of  a  tradesman  and  his  customer, 

in  the  common  way  of  business,  where  the  items  of  credit  are  all  on  one  side 
only.(^) 

The  statute  of  James  does  not  begin  to  take  effect  till  the  cause  of  action  is 
complete,  and  the  party  is  capable  of  suing  upon  it ;  (I)  as  in  the  case  of  a  con- 
signee of  goods  for  sale,  no  action  lies  for  not  accounting  and  returning  the 
goods  undisposed  of  until  demand  ;  and,  therefore,  the  statute  does  not  begin  to 
run  until  the  time  of  demand,  (m)  So,  the  statute  begins  to  operate  only  from 
the  time  when  a  bill  of  exchange  or  promissory  note,  Sic.  is  due,  and  not  from 
the  date,  (n)  It  has  been  held,  however,  that  notes  payable  on  demand  run 
from  the  date  of  the  note,  and  not  from  the  time  of  the  demand. (o)  So, 
where  the  cause  of  action  is  complete  in  the  life  time  of  the  testator,  the  statute 
begins  to  run  from  that  time,  and  not  from  the  time  of  granting  of  the  probate,  (p) 

The  second  provision  in  the  statute  of  James  relates  to  the  plaintiff's  being 
beyond  sea.  (q)  But  by  4  &  5  Ann.  c.  16.  s.  19.,  the  effect  of  this  *provision 
is  extended  to  the  defendant's  being  beyond  sea,  at  the  time  of  the  cause  of  ac- 
tion accruing.     If  therefore  the  defendant  be  abroad  at  the  time  of  making  the 

(/)  Carth.  226.  2  Saund.  127.  n.  6.  (m)  1  Taunt.  572. 

(?)  6  T.  R.  189.  192.  (n)  1  H.  Bl.  631.  5Barn.  &  Aid.  214. 

\h)  Vid.  2  Saund.  127.  c.  2.  Bl.  Rep.  723.  (o)  1  Selw.  Ni.  Pri.  c.  4.  s.  6. 

(i)  Peake,  127.  (p)  Willes'  Rep.  27. 

(k)  2  Saund.  127.  b.  (q)  Carth.  136.  226.  1  Show.  98. 

(0  Cro.  Car.  139.  1  Lev.  43. 


(59)  In  the  state  of  New-York,  a  similar  construction  has  been  given  to  the  statute  of 
James.  Ramchander  v.  Hammond,  2  J.  R.  200.  See  Stiles  v.  Donaldson,  2  Dall.  £64.  S.  C. 
2  Yeates,  105.  It  has  been  held,  that  the  exception  of  the  stat.  21  James  1.  c.  16.  s.  3.  in 
favour  of  accounts  between  merchant  and  merchant,  applies  as  well  to  actions  of  assumpsit 
as  to  actions  of  account.  MandevUle  v.  Wilson,  5  Cranch,  15,  18.  It  extends  to  all  accounts 
which  concern  the  trade  of  merchandize.  An  account  closed  by  the  cessation  of  dealings 
between  the  parties  is  not  an  account  stated  ;  and  it  is  not  necessary  that  any  of  the  items 
should  have  been  charged  within  the  period  oi'limitation.  Id.  S.  P.  Bass  v.  Bass,  6  Pick.  362. 
See  further,  Moore  v.  Jiluuro,  4  Rand.  438. 

(60)  Upon  this  point,  see  Tucker  wives,  6  Cowen,  193.  Montgomery  v.  Hernandes,  12 
Wheat.  129.  Wilcox  v.  Plummets  Exrs.  4  Peters,  172.  Zeiglerv.  Hunt,  1  M'Cord,  577. 
Herrell  v.  Kelley,  2  M'Cord.  426.  Horsefield  v.  Cost,  Addis.  153.  Jones  v.  Connote  ay,  4  Yates, 
109.  In  an  action  for  fraud,  it  is  a  sufficient  reply  to  a  plea  of  the  statute  of  limitations,  that 
the  fraud  was  net  dicovered  until  within  six  years.    Homer  v.  Fish,  1  Pick.  435. 

*7a 


Chap.  5.]  Upon  Contracts  and  Promises.  73 

contract,  he  need  not  be  sued  until  six  years  after  his  first  return  into  this  coun- 
try.(r)  The  statute  of  limitations  extends  to  persons  absent  in  Scotland,  (s) 
but  not  to  those  in  Ireland  ;(t)  the  latter  being  considered  as  beyond  the  sea, 
within  the  meaning  of  the  above  provision ;  and  foreigners  living  beyond  the 
sea  have  the  same  advantage  of  the  proviso  as  persons  residing  here.(t;) 

If  the  plaintiff  be  in  England  when  the  cause  of  action  accrues,  the  time  of 
limitation  begins  then  to  run,  and  a  subsequent  departure  from  the  kingdom, 
and  going  beyond  the  seas,  will  not  entitle  the  plaintiff,  or  his  representative, 
to  maintain  an  action  after  the  expiration  of  the  six  years,  (to) 

(r)  2  Saund.  121.  a.  b.  («)  2  Bl.  Rep.  723. 

(»)  1  Bl.  Rep.  286.  (u>)   1  Wils.  134. 

(1)  Per  Holt,  Ch.  J.  1  Show.  91. 


THE    LAW 


OF 


CONTRACTS  AND  PROMISES. 


PART  THE    SECOND. 

OF  THE  SUBJECT  MATTER  OF  CO  NTRACT9 

AND  PROMISES. 


CONTENTS. 
I. 


OF  Contracts  for  the  Sale  and  Delivery   of  Goods,   &c, 
And  of  the  statute  of  Frauds  Relating  thereto  ;  and 
also  of  Warranties  by  Sample  or  otherwise. 

II. 

OF  Guaranties  or  Promises  to  be  Answerable  for  the  Debt 
or  Default  of  Another  ;  And  of  the  Statute  of  Frauds  Re- 
lating thereto. 

III. 

OF  Contracts  For  Services  and  Works. 

IV. 

ON  Promises  To  Pay  over  Money  Had  and  Received  to 
the  Use  of  Another ;  And  in  what  Cases  an  Action  lies 
for  the  Recovery  thereof. 

*V. 
ON  Promises  To  Pay  Money  Lent  and  Advanced. 

*75  #T6 


76       Of  the  Subject  Matter  of  Contracts  and  Promises. 

VI. 

ON  Promises  To  Pay  for  Money  Paid,  Laid  out,  and  Ex- 
pended to  and  for  the  Use  of  Another. 

VII. 

ON  Promises  To  Pay  Money  Due  upon  an  Account  stated. 

VIII. 

ON  Promises  To  Pay  Interest ;  And  in  what  Cases  it  is 

Recoverable. 

IX. 

OF  Contracts  To  Accept  or  Transfer  Public  Stock. 

X. 

OF   Agreements   Not  to  carry  on  Trade  within   certain 

Limits. 

XL 

OF  Agreements  For  the  Sale  or  Relinquishment  of  Offices, 

&c. 

XII. 

OF  Contracts  To  Marry  ;  And  to  Pay  Money  in  Consider- 
ation of  Marriage  ;  And  of  the  Statute  of  Frauds  upon 
the  latter  Contract. 


Shap.  1.]     Of  Contracts  for  the  Sale  of  Goods,  fyc  77 


*PART  THE  SECOND 


CHAPTER  I. 


OF  CONTRACTS  FOR  THE  SALE  OF  GOODS,  &c. 

AS  this  chapter  will  necessarily  embrace  a  great  variety  of  subjects,  I  pro- 
pose to  consider  them  in  the  following  order  ;  viz. 

1.  OF  THE  GENERAL  RULES  OF  LAW  RELATING  TO  CONTRACTS  FOR 
THE  SALE  AND  DELIVERY  OF  GOODS  ;  AND  OF  GAMBLING  SPEC- 
ULATIONS  UNDER  COLOUR  OF  A  SALE  OF  GOODS. 

2.  OF    THE   STATUTE    OF   FRAUDS    RELATING   TO   CONTRACTS    FOR 

THE  SALE  OF  GOODS. 

3.  OF  BOUGHT  AND  SOLD  NOTES  MADE  BY  BROKERS. 

4.  OF  ABSOLUTE  AND  CONDITIONAL  SALES,  OR  PARTICULAR  STIPU- 
LATIONS ANNEXED. 

5.  OF  WARRANTIES  BY  SAMPLE  AND  OTHERWISE  ;  AND  OF  DECEIT 
IN  THE  SALE  OF  GOODS,  &c. 

6.  OF  SALE  AND  RETURN. 

7.  OF  SALE  AND  EXCHANGE. 

8.  OF  BARGAIN  AND  SALE  OF  GOODS  WITHOUT  DELIVERY. 

9.  OF  SALES  BY  AUCTION. 

10.  OF  THE  DELIVERY  UPON  A  SALE  OF  GOODS,  EITHER  TO  THE 
VENDEE  PERSONALLY,  OR  AT  HIS  PREMISES,  OR  TO  A  PARTICULAR 
CARRIER,  WHARF,  OR  OTHER  PLACE  ;  AND  AT  WHOSE  RISK  THE 
GOODS  ARE  WHILST  IN  THEIR  TRANSIT,  &c. 

11.  WHEN  THE  PROPERTY  IN  GOODS  SOLD  IS  VESTED  IN  THE  BUY- 
ER ;  AND  OF  THE  SELLER'S  LIEN  OR  RIGHT  TO  STOP  THEM  IN 
TRANSITU. 

*12.  OF  THE  SALE  OF  GOODS  BY  ASSIGNMENT  OF  A  BILL  OF  LADING. 

13.  OF  SALES  IN  MARKET  OVERT. 

14.  OF  A  SALE  AND  DELIVERY  OF  GOODS  EFFECTED  BY  MEANS  OF 
FRAUD  OR  SWINDLING;  AND  OF  THE  SELLER'S  RIGHT  TO  FOLLOW 
AND  SEIZE  THEM. 

15.  OF  THE  SALE  OF  SMUGGLED  GOODS,  OR  OF  OBSCENE  AND  LIBEL- 
LOUS PRINTS,  &c. 

16.  OF  CREDIT,    AND    THE    TIME    AND  MODE    OF    PAYMENT  ;  AND   IN 

WHAT  CASES  PAYMENT    MAY    BE    RESISTED,   OR   THE    CONTRACT 
PRICE  REDUCED  TO  A  QUANTUM  VALEBANT. 

*77  *78 


78         Of  Contracts  for  the  Sale  of  Goods,  fyc.      [Part  II. 


1.  OF  THE  GENERAL  RULES  OF  LAW  RELATING  TO  CONTRACTS  FOR 
THE  SALE  OF  GOODS  ;  AND  OF  GAMBLING  SPECULATIONS  UNDER 
COLOUR  OF  A  SALE. 

In  Shepparcfs  Touchstone, {a)  the  law  is  said  to  be,  "  that  if  a  man  by  word 
of  mouth  sell  to  me  his  horse,  or  any  other  thing,  and  I  give  him  or  promise 
him  nothing  for  it,  this  is  void,  and  will  not  alter  the  property  of  the  thing  sold. 
But  if  one  sell  me  a  horse  or  any  other  thing  for  money,  or  any  other  valuable 
consideration,  and  the  same  thing  is  to  be  delivered  to  me  at  a  day  certain,  and 
by  our  agreement  a  day  is  set  for  the  payment  of  the  money ;  or  all  or  part  of 
the  money  is  paid  in  hand ;  or  I  give  earnest-money  (albeit  it  be  but  a  penny) 
to  the  seller ;  or  I  take  the  thing  bought  by  agreement  into  my  possession, 
where  no  money  is  paid,  earnest  given,  or  day  set  for  the  payment :  in  all  these 
cases  there  is  a  good  bargain  and  sale  of  the  thing  to  alter  the  property  there- 
of; and  in  the  first  case,  I  may  have  an  action  for  the  thing,  and  the  seller  for 
his  money :  in  the  second  case,  I  may  sue  for  and  recover  the  thing  bought : 
in  the  third,  I  may  sue  for  the  thing  bought,  and  the  seller  for  the  residue  of  the 
money :  in  the  fourth  case,  where  earnest  is  given  we  may  have  reciprocal 
remedies  one  against  another;  and  in  the  last  case  the  seller  may  sue  for  his 
money."  Again  it  is  said,  in  Noy's  Maxims,  (b)  "If  I  sell  my  horse  for  mon- 
ey, I  may  keep  him  until  I  am  paid  ;  but  I  cannot  have  an  action  of  debt  until 
he  be  delivered;  yet  the  property  of  the  horse  is  by  the  bargain  in  the  bargain- 
or or  buyer  :  but  if  he  do  presently  tender  me  my  money,  and  I  do  refuse  it, 
he  may  take  the  horse,  or  have  an  action  of  detainment.  *And  if  the  horse  die 
in  my  stable  between  my  bargain  and  the  delivery,  I  may  have  an  action  of  debt 
for  my  money ;  because,  by  the  bargain,  the  property  was  in  the  buyer." 
There  is,  however,  this  diversity,  when  the  day  of  payment  is  limited,  and  when 
not:  in  the  first  case,  the  contract  is  good  immediately,  and  an  action  lies  upon 
it  without  payment;  but  in  the  other  not  so:  as  if  a  man  buy  of  a  draper  twen- 
ty yards  of  cloth,  the  bargain  is  void  if  he  do  not  pay  the  money  at  the  price 
agreed  upon  immediately  ;  but  if  the  day  of  payment  be  appointed  by  agree- 
ment of  the  parties,  in  that  case  one  shall  have  his  action  for  the  money,  and 
the  other  for  not  delivering  the  cloth,  (c)  So,  if  two  are  agreed  upon  the  price, 
and  the  buyer  departs  without  tendering  the  money,  and  comes  the  next  day 
and  tenders  it,  the  other  may  refuse  ;  for  he  is  not  bound  to  wait,  unless  a  day 
of  payment  was  agreed  between  them,  (d)  And  where  A.  having  proposed  to 
sell  goods  to  B.,  gave  him  a  certain  time,  at  his  request,  to  determine  whe- 
ther he  would  buy  them  or  not ;  B.  within  the  time  determined  to  buy  them, 
and  gave  notice  thereof  to  A. ;  yet  A.  was  not  liable  to  an  action  for  not  deliver- 
ing them ;  for  B.  not  being  bound  by  the  original  contract,  it  was  held  there 
was  no    consideration   to  bind  A.     Thus,  in  the  case   of  Cooke    v.   Oxley,  (e) 


(a)  Page  224. 

(6)  Pa«c  88.     See  also  7  East  Rep.  571. 
(c)  Per  curiam,  Dv.  30.  m 
*79 


(d)  Bro.  Contract,  pi.  26.     5  Vin.  Abr. 
515. 

(e)  3  Term  Rep.  653. 


Chap.  1.]     Of  Contractu  for  the  Sale  of  Goods,  fyc.        79 

which  was  an  action  of  assumpsit ;  the  declaration  stated,  that  on,  &c.  a  cer- 
tain discourse  was  had,  &c.  concerning  the  buying  of  266  hogsheads  of  tobacco; 
and  in  that  discourse   the  defendant  proposed   to  the   plaintiff  that  the   former 
should  sell  and  deliver  to  the  latter  the  said  266  hogsheads  (at  a  certain  price); 
whereupon  the  plaintiff  desired  the  defendant  to  give  him  (the  plaintiff)  time  to 
agree  to  or  dissent  from  the  proposal  till   the  hour  of  four  in   the   afternoon  of 
that  day,  to  which  the  defendant  agreed  ;  and  thereupon  the  defendant  proposed 
to  the  plaintiff  to  sell  and  deliver  the   same   upon  the  terms   aforesaid,   if  the 
plaintiff  would  agree  to  purchase  them  upon  the  terms  aforesaid,  and  would  give 
notice  thereof  to  the  defendant   before   the  hour  of  four  in  the   afternoon  of  that 
day ;  the  plaintiff  averred  that  he  did  agree  to  purchase  the  same  upon  the  terms 
aforesaid,  and  did  give  notice  thereof  to  the  defendant  before  the  hour  of  four 
in  the  afternoon  of  that  day  ;  he  also  averred  that  he  requested  the  defendant  to 
deliver  to  him  the  said  hogsheads,  and  offered  to  pay  to  the  defendant  the  said 
price  for  the  same,  yet  that  the  defendant,  did  not,  &c.     Upon  this  declaration 
the  court  determined,  that  the  action  could  not  be  sustained,  there  being  no  con- 
sideration for  the  promise. 

Lord  Kenyon,  Ch.  J.  said,  "Nothing  can  be  clearer  than  that,  at  the  time  of 
entering  into  this  contract,  the  engagement  was  all  on  one  side  ;  *the  other  par- 
ty was  not  bound  ;  it  was  therefore  nudum  pactum.''''  And,  Duller,  Just,  said  : 
44  It  is  impossible  to  support  this  declaration  in  any  point  of  view.  In  order  to 
sustain  a  promise  there  must  be  either  a  damage  to  the  plaintiff,  or  an  advantage 
to  the  defendant ;  but  here  was  neither,  when  the  contract  was  first  made. 
Then  as  to  the  subsequent  time,  the  promise  can  only  be  supported  on  the 
ground  of  a  new  contract  made  at  four  o'clock  ;  but  there  is  no  pretence  for  that. 
It  has  been  argued,  that  this  must  be  taken  to  be  a  complete  sale  from  the 
time  when  the  condition  was  complied  with  :  but  it  was  not  complied  with;  for 
it  is  not  stated  that  the  defendant  did  agree  at  four  o'clock  to  the  terms  of  the 
sale,  or  even  that  the  goods  were  keep  till  that  time." 

But,  it  is  said,(/)  if  a  man  agree  to  sell  goods  for  so  much  as  A.  shall  name, 
though  the  contract  is  not  complete  till  A.  names  the  price,  yet  if  the  vendor 
sell  the  goods  to  another  before  A.  names  the  price,  and  A.  afterwards  name  it, 
an  action  upon  the  case  lies  for  the  non-delivery  of  the  goods.  So,  if  A.  sell 
cloth  to  B.  for  10s.,  and  B.  takes  away  the  cloth  against  the  will  of  A.,  in  this 
case  A.  shall  have  an  action  of  trespass  against  B.  ;  and  if  A.  sell  cloth  to  B. 
for  10s.,  in  his  election  to  make  it  a  bargain  or  not,  and,  if  he  will,  he  may 
keep  his  cloth  until  the  other  pay  him,  and  if  A.  say  nothing,  but  doth  suffer 
B.  to  take  it  away,  he  may  make  it  a  bargain  if  he  will,  and  bring  an  action 
of  debt  for  his  money,  (g)  So,  if  I  offer  money  for  a  thing  in  a  market  or  fair, 
and  the  seller  agree  to  take  my  offer,  and  whilst  I  am  telling  the  money  as  fast 
as  I  can,  he  doth  sell  the  thing  to  another  ;  or  when  I  have  bought  it,  we  agree 
that  he  shall  keep  it  until  I  can  go  home  to  my  house  to  fetch  the  money  ;  in 

(J)  Kit.    181.  a.     See  also  Com.    Dig.  tit.         (g)  Shep.  Touch.  225. 
Agreement,  A.  4. 

11  *80 


80 


Of  the  Statute  of  Frauds  upon 


[Part  II, 


both  these  eases,  especially  in  the  first,  the  bargains  are  good,  so  as  the  seller 
may  not  sell  them  afterwards  to  another ;  and  upon  the  payment,  or  tender  and 
refusal  of  the  money  agreed  upon,  I  may  take  and  recover  the  things.  (/*) 

If  goods  are  marked,  or  have  the  seal  of  the  buyer  upon  them,  whilst  they 
are  in  the  possession  of  the  seller,  the  property  is  said  to  be  vested  in  the  buyer 
immediately,  and  remain  in  the  possession  of  the  seller  only  as  a  security  for  the 
price. (t)  So  it  is  said,  (k)  that  if  one  sell  me  any  tiling  by  the  tod,  pound,  bush- 
el, yard,  or  ell ;  it  shall  be  reckoned  according  to  the  custom  of  the  country  or 
place  where  they  are  sold,  and  not  according  to  the  statute  measures  of  other 
countries.  But  corn,  by  statute,  (/)  must  now  be  sold  throughout  England  by 
the  Winchester  bushel,  and  not  otherwise. 

If  one  sell  me  twenty  barrels  of  ale,  or  ten  bottles  of  wine  ;  by  these  bargains 
I  shall  not  have  the  barrels  or  bottles  with  the  ale  or  the  wine.  *But  upon  the 
sale  of  a  hogshead  of  wine,  it  seems  by  this  bargain,  that  the  buyer  shall  have 
the  hogshead  with  the  wine.(?«) 

Of  Gambling  Speculations,  under  Colour  of  a  Sale.] — Tt  has  of  late 
been  the  practice  in  the  commercial  world  for  persons  to  speculate  upon  the 
probable  prices  of  paticular  articles  of  trade  at  a  future  day,  and,  like  stock- 
jobbing transactions,  they  have  entered  into  time  bargains,  under  the  colour  of  a 
contract  for  the  sale  of  goods,  at  a  specified  price  payable  on  a  particular  day, 
without  any  intention  either  to  buy  or  sell,  but  merely  making  it  a  gambling 
speculation  ;  and  on  the  arrival  of  the  day  mentioned  in  the  contract,  the  par- 
ties settle  and  pay  the  difference  between  the  market  price  of  the  day,  and  the 
fixed  price  mentioned  in  the  pretended  contract  of  sale.  This  species  of  specula- 
tion has,  however,  been  recently  brought  before  the  courts  of  law,  and  we  have 
seen,  in  a  former  chapter,(?i)  that  all  such  contracts  have  been  declared  to  be 
illegal, 

2.  OF  THE  STATUTE  OF  FRAUDS  RELATING  TO  CONTRACTS 

FOR  THE  SALE  OF  GOODS. 


Before  the  passing  of  the  statute  29  Car.  2.  c.3.,  contracts  and  agreements 
wfere  commonly  entered  into  verbally,  without  any  writing;  but  this  giving 
rise,  as  appears  by  the  preamble  of  that  act,  to  many  fraudulent  practices, 
which  were  endeavoured  to  be  upheld  by  perjury,  and  subornation  of  perju- 
ry, the  legislature  deemed  it  expedient,  that  certain  contracts  should  be  either 
reduced  into  writing  and  signed,  or  that  some  specific  act  should  be  done  by  the 
party  to  be  charged  with  the  contract;  and  accordingly,  by  the  17th  clause  of 
the  above  statute,  it  is  enacted,  "  that  from  and  after  the  24th  June  1677,  no 
contract  for  the  sale  of  any  goods,  wares,  and  merchandizes,  for  the  price  of 
10/.  sterling,  or  upwards,  shall  be   allowed  to  be  good,  except  the  buyer  shall 


(ii)  Ibid.  See    also  Greaves  v.   tflshlm,  3 
Campb.  4264r 

(t)  Skin.  Rep.  647.  Holt's  Rep.  8. 
(k  Sfiep.  Toiwh.  225. 
*81 


(I)  22  Car.  2.  c.  8.  6.  2.  ;  and  sec  4  T.  R. 
750. 

(m)  Shep.  Touch.  225. 
(*)  Ante,  58. 


Chap.  1  ]        Contracts  for  the  Sale  of  Goods,  fyc.  81 

accept  part  of  the-  goods  so  sold,  and  actually  receive  the  same,  or  give  some- 
thing in  earnest  to  bind  the  bargain,  or  in  part  of  payment,  or  that  some  note 
or  memorandum  in  writing  of  the  said  bargain  be  made  and  signed  by  the  par- 
ties to  be  charged  by  such  contract,  or  their  agents  thereunto  lawfully  author- 
ized." 

As  various  questions  have  arisen  upon  different  parts  of  this  clause  of  the 
statute  ;  and  as  numerous  cases  thereon  are  reported  in  our  law  books,  it 
will  be  necessary  to  consider  those  parts  according  to  the  order  in  which 
they  stand  in  the  clause  itself;  and,  1st,  of  the  contract  and  subject  mat- 
ter of  it ;  2dly,  as  to  the  amount  of  the  price  of  the  goods ;  3dly, 
of  the  acceptance  and  receipt  of  the  goods  ;  4thly,  of  earnest  given  to  bind 
the  bargain,  or  in  part  payment ;  and,  lastly,  of  the  note  *or  memorandum 
signed    by   the    parties  or  their  agents  thereunto  lawfully    authorized. 

1.  Ok  the  Contract,  and  the  Subject  Matter  thereof.] — Upon  the 
word  contract,  a  distinction  was  formerly  taken  between  executory  and  execu- 
ted contracts  ;  the  former  having  been  held  not  to  be  within  the  statute  but 
only  the  latter.  Thus,  in  the  case  of  Towers  v.  Sir  John  Osborne,{in)  where 
the  defendant  ordered  a  chariot  to  be  built ;  but  when  it  was  made  he  refused 
to  take  it ;  and  in  an  action  brought  for  the  value,  it  was  contended  that  the 
plaintiff  should  prove  something  given  in  earnest,  or  a  note  in  writing,  since 
there  was  no  delivery.  But  the  Chief  Justice  ruled  this  not  to  be  a  case  within 
the  statute  of  frauds,  which  relates  only  to  contracts  for  the  actual  sale  of  goods, 
where  the  buyer  is  immediately  answerable,  without  time  given  him  by  special 
agreement ;  and  the  seller  is  to  deliver  the  goods  immediately.  And  in  another 
case  of  Clayton  v.  Andrews, (n)  where  the  defendant  agreed  to  deliver  a  cer- 
tain quantity  of  wheat  to  the  plaintiff  within  three  weeks,  or  a  month,  from  the 
said  agreement,  at  a  certain  rate  to  be  paid  on  delivery;  which  wheat  was  un- 
derstood by  both  parties,  at  the  time  of  making  the  agreement,  to  be  unthrash- 
ed.  No  part  of  the  wheat  so  sold  was  delivered  ;  nor  any  memorandum  there- 
of made  in  writing,  nor  any  earnest  given.  And  the  question  for  the  opinion  of 
the  Court  was,  whether  this  agreement  was  within  the  statute  of  frauds.  Lord 
Mansfield  held,  upon  the  authority  of  the  case  just  cited,  that  it  was  not 
within  the  statute.  And  Yates  Just,  said,  "  The  seventeenth  clause  of  the 
statute  related  only  to  executed  contracts.  Here  wheat  was  sold  to  be  delivered 
at  a.  future  time.  It  was  unthrashed  at  the  time  when  the  contract  was  made  ; 
threfore  it  could  not  be  delivered  at  that  time.  But  in  the  case  of  Rondeau  v. 
Wyatt,{p)  this  distinction  was  denied  and  overruled  ;  though  the  decisions 
were  supported  upon  other  grounds.  The  action  was  brought  for  the  non-per- 
formance of  a  special  contract  against  the  defendant,  who  was  one  of  the 
proprietors  of  the  Albion  Mill,  had  entered  into  a  verbal  agreement  to  sell  and 
deliver  3000  sacks  of  flour  to  the  plaintiff  to  be  put  in  sacks,  which  the  plaintiff 


0")  Stra.  506-  (o)  2  H.  Bl.  63.  Sec  also  Cooper  v.  Elstm, 

M  4  Bur.  2101.     Sea  also  1  H.  Bl.  20.     post,  94.  where  the  determination  of  this  case 

g-  *'  wan  fully  assented  to  by  all  tiie  judge*  oftUc 

Court  of  King's  Beneh. 


* 


£2 


82  Of  the  Statute  of  Frauds  upon  [Part  II. 

was  to  send  to  the  mill,  and  shipped  on  board  vessels  to  be  provided  by  him  in 
the  river,  on  an  express  condition  that  the  flour  should  be   exported  to  foreign 
parte,  from  some  port  which  the  plaintiff  was  to  open,  and  should  not  meet  the 
defendant  and  the  company  again  in  the  home  market.     In  order  to  carry  the 
scheme  of  exportation  into  effect,  the  plaintiff  sent  down  to  Shoreham  in  Sussex 
a  large    quantity    of  corn    and   flour   merely   to    reduce,   by  collusion    and  a 
fictitious  sale,  the  market-price  to  the  level  prescribed  by  act  of  parliament. (p) 
*But  this   intended  trick  being   discovered    by    government,   the  exportation 
was  prevented,    as  the  price  was  then  very   high,   and    an    apprehension  of  a 
scarcity  in  this  country  prevailed.     As  the  plaintiff,  therefore,  could  not  legally 
comply  with   the  condition  contained  in   the   contract,   the   defendant  refused  to 
deliver  the  flour ;  and  for  such  refusal  the  present  action  was  brought,  in  which 
the  plaintiff  obtained  a  verdict,  contrary  to  the  opinion  of  Lord  Loughborough , 
before  whom  the  cause  was  tried,  who  thought  that  on  grounds  of  public  policy, 
but  chiefly  because    the   contract  seemed  to  him  to  be  within  the  statute   of 
frauds,  the  plaintiff  was  not  entitled  to  recover.     A  rule  was  therefore  obtained 
calling  upon  the  plaintiff  to  shew  cause,  why  the  verdict  should  not  be  set  aside, 
and  a  non-suit  entered.     And,  after  the  case  had  been  fully   argued  at  the  bar, 
and  the  Court  had  taken  time  to   consider,  Lord  Loughborough  pronounced  the 
judgment  of  the  Court,  that  the  objection  made  on  that  statute  is  well  grounded, 
and  therefore  that  the  plaintiff  ought  to  be  non-suited.      His  Lordship  observed, 
"  that  it  had  been  said  in  the  argument,  that  the  statute  does  not  extend  to  cases 
of  executory  contracts.     Now  it  is  singular  that  an  idea  could  ever  prevail  that 
this  section  of  the  statute  was  only  applicable  to  cases  wliere  the  bargain  was 
immediate,  for  it   seems  plain  from  the  words  made    use  of,  that  it  was  meant 
to  regulate  executory,  as  well  as  other  contracts."     The  words  are    "  No  con- 
tract for  the  sale  of  any  goods,  &c."     And,  indeed,  it  seems  that  this  provision 
of  the  statute  would  not  be  of  much  use,  unless  it  were  to  extend  to  executory 
contracts  ;  for  it  is  from  bargains  to  be  completed   at  a  future    period,  that  the 
uncertainty  and  confusion  will  probably    arise,  which   the  statute  was  designed 
to  prevent.(61)    The  case  of  Towers  v.  Osborne  was  plainly  out  of  the  statute, 
not  because  it  was  an   executory  contract,  as  it   has   been  said,  but  because  it 
was  for  work  and  labour  to  be  done,   and  materials  and  other  necessary  things 
to  be  found,  which  is   different  from  a  mere  contract  of  sale  ;  to  which  species 
of  contract  alone   the  statute  is   applicable.     And   in    Clayton  v.  Andrews, {q) 
which  was  on  an  agreement  to  deliver   corn  at  a  future  day,  there  was   also 
some  work  to   be   performed,  for  it  was  necessary  that   the    corn     should  be 
thrashed  before    the  delivery.     This,   perhaps,  may  seem  to  be  a  very  nice 
distinction,  but  still  the  work  to  be  performed  by  thrashing,  made,  though   in  a 
small  degree,  a  part  of  the  contract." 

(?)  13  Geo.  3.  c.  45.  s.  5.  (g)  Ante,  82. 

(61)  It  is  now  well  settled,  that  the  statute  applies  equally  to  executory  and  executed 
eontraets.  Bennett  v.  Hall,  10  J.  R.  364.  Crookshank  t.  Burrell,  18  J.  R.  58.  Sewall  v. 
Fitch,  8  Cowen,  215. 

•83 


Chap.  1.]     Contracts  for  the  Sale  of  Goods,  fyc  83 

In  conformity  to   those  decisions,  it  has  been  subsequently  determined,  that 

where  the  thing  contracted  for  at  the  time  of  sale  is  not  in  esse,  or  is  incapable 

of  delivery  and  of  part    acceptance,  such  a   contract  is  not  within  the  statute  of 

frauds,(61  a.)   Thus,  in  the  case  of  Groves  v.  Buck,(r)  where  reappeared,  that 

a  contract  had  been  made  for  the  sale  of  a  quantity  of  oak  pins,  which,  at  the 

time  of  the  sale,  were  not  cut  out  of  the  slabs  ;  Lord  Ellenborough  Ch.  J.  held, 

that  such  a  contract  was  not  within  the    statute,    upon  the  ground   that    "  the 

subject  matter   of  the    contract,  at   the  time  of  making  it,    did    not    exist  in 

rerum  nalura ;  and  it  was  incapable  of  delivery  and  of  part  acceptance ;    and 

where    that   is    the    case,    the    contract    has  been  considered   as    not  within 

the  satute  of  frauds."     But    where  the   thing  contracted    for  is    in    a   state 

of  delivery   at  the  time   of  sale,    though  at  a  considerable    distance    from  the 

residence  of  the  buyer  ;  such  a  contract  is  within  the    statute,    even  though 

it  be  part    of     the     contract,    that  the    vendor   shall   deliver  it     at  his  own 

charge,    in  consideration    of  an    additional   price   having    been    agreed   upon 

between     the    parties,  (s)     So,    it  has    been  determined    since    the    case  of 

Rondeau  v.    Wyatt,  that  a  contract  for  the  sale  of  flour  to  be  prepared  by  the 

sellers,  who  were   millers,    and   to  be   afterwards   shipped    to  the  buyer,  is 

within  the  statute  ;  and  if  not  in  writing  is  void.     And  that  it  is   not  a  mixed 

contract  for  the  carriage   and  sale.     And   Mr.  Justice    Bayley  in  this  case  (t) 

observed,  "  that  the  nearest   case    to    this,  is  Clayton  v.  Andrews.     But    that 

decision  was,  as  it  seems  to   me,  corrected  by  the  case  of  Rondeau  v.  Wyatt. 

This  was   substantively  a    contract  for   the  sale    of  flour,  and  it  seems  to  me 

immaterial,  whether  the  flour  was   at    the  time   ground  or  not.     The    question 

is,  whether  this  was  a  contract  for  goods,  or  for  work  and  labour,  and  materials 

found  ?(62)  I  think  it  was  the   former  ;  and  if  so,    it  falls  within  the  statute  of 

frauds."  Upon  the  subject  matter  of  the  contract,  it  has  frequently  been  made 

a  question  whether  shares   of  a  company,  or  public    stock,   are    comprehended 

under    the    words   goods,     wares,    and    merchandizes.     But  the    point  does 

not  appear    to  have    been  finally   settled ;  for  in  the    case  of    Pickering  v. 

Appleby,  (u)  which  was  an  action  of  assumpsit  for   580/.    for    ten   shares   in 

the  stock   of  the    governors  and    company   of  the  copper    mines  in  England, 

transferred  and  sold  by  the  plaintiff  to  the  defendant.     There    was  no   agree- 


(r)  3  Maule  and  Sel.  178.  (t)  Vide   Garbutt  v.   Watson,  5  B.    &  A. 

(s)  Aslty  v.  Emery.     4  Maule  &  Sel.  262.      613. 

(u)  Com.  Rep.  354. 


(61.  a.)  In  the  case  of  Sewall  v.  Fitch,  8  Cowen,  215,  which  was  an  action  for  the  non- 
delivery of  300  casks  of  cut  nails  ;  a  part  of  which  were  on  hand  at  the  time  of  the  contract, 
and  the  rest  were,  thereafter,  to  be  manufactured  ;  it  was  held,  that  the  contract  was  not 
within  the  statute  of  frauds. 

(62)  A  contract  to  sell  the  improvements  made  on  land,  is  not  within  the  statute  of 
frauds.  Improvements  on  land,  is  only  another  name  for  work  and  labor  bestowed  on 
land  ;  and  a  parol  promise  to  pay  for  6uch  services  has  never  been  held  to  be  within  the 
statute.  Lower  v.  Winters,  7  Cowen,  263.  See  Frear  v.  Hardenbergh,  5  J.  R.  275.  Per 
Spencer,  J.  and  note  (a)  277.  Benedict  v.  Beebe,  11J.  R.  145.  Crookshank  v.  Burrell,  18  J. 
M.   08. 

*84 


84  Of  the  Statute  of  Frauds  upon         [Part  II. 

ment  or  memorandum  in  writing  of  the  contract,  or  any  earnest  paid.  At  the 
trial  before  King,  Ch.  J.,  it  was  doubted  whether  the  shares  in  the  stock 
of  this  company  were  within  the  purview  and  intent  of  the  statute  of  frauds ; 
and  therefore  it  was  made  a  case,  and  argued  before  the  court  of  Common 
Pleas  ;  and  afterwards  at  Serjeant's  Inn  before  all  the  judges  of  England. 
They,  however,  being  divided  in  opinion,  the  question  was  adjourned. (v) 
But,  in  the  case  of  Mussell  v.  Cooke,  (w)  where  the  plaintiff  had  agreed  witli 
one  Green,  the  defendant's  broker,  for  5000/.  South-sea  stock,  187/.  per  cent. 
to  be  delivered  about  10  days  after  ;  and  on  the  day  appointed,  the  plaintiff 
attended  at  the  transfer  office  all  day,  but  the  defendant  did  not  come,  and 
the  stock  *having  in  the  mean  time  considerably  risen,  the  defendant 
refused  to  transfer  it ;  the  plea  of  the  statute  was  held  by  the  Lord  Chan- 
cellor, Macclesfield,  to  be  good. 

In  a  subsequent  case,  however,  of  Coll  v.  Nctterville,  (y)  which  turned  not 
only  upon  the  question  whether  stock  came  within  the  description  of  goods,  &c. 
but  also  upon  the  circumstance  of  something  having  been  given  as  earnest.  It 
was  a  bill  for  a  specific  performance  of  an  agreement  for  transferring  some 
York  Buildings  stock,  stating  that  the  defendant  had  agreed  to  transfer  it  to  the 
plaintiff  o-i  a  particular  day  therein  mentioned,  on  the  plaintiff's  paying  the  mon- 
ey, and  that  the  plaintiff  agreed  to  pay  so  much  per  cent,  and  to  accept  the 
transfer,  and  did  thereupon  pay  to  the  defendant  6d.  earnest.  To  which  bill 
the  statute  of  frauds  was  pleaded,  and  the  defendant  denied  that  he  received  or 
accepted  the  6d.  as  earnest,  and  alleged  that  no  part  of  the  stock  was  delivered 
or  note  given  ;  whereupon  it  was  argued,  on  one  side,  that  the  York  Buildings, 
and  other  stocks,  were  within  the  words  and  meaning  of  the  statute  of  frauds, 
so  as  to  require  either  part  of  the  thing  agreed  to  be  sold  to  be  delivered,  or  a 
note  in  writing,  or  money  to  be  paid  as  earnest;  for,  first,  that  this  clause  of  the 
statute  expressly  mentions  contracts  for  the  sale  of  any  goods,  or  merchandizes, 
and  that  the  word  goods  was  of  a  very  extensive  signification.  Secondly,  that 
if  one  having  stock  should  commit  felony,  this  without  question  would  be  a 
forfeiture  of  his  stock,  a  forfeiture  to  those  who  should  have  a  grant  of  bonafel- 
omun,  so  that  stock  was  within  the  words  bona,  or  goods.  Thirdly,  at  least  it 
was  within  the  word  merchandize,  for  every  vendible  thing  was  merchandize  ; 
now  stock  was  a  thing  vendible,  and  in  the  year  1720,  was  the  most  usual 
merchandize  which  people  dealt  in.  On  the  other  side  it  was  contended,  that 
whereas  the  statute  enacts,  that  no  contracts  should  be  good  for  the  sale 
of  goods,  wares,  and  merchandizes,  of  10/.  price,  unless  part  of  the  goods 
be  delivered,  or  earnest  paid,  or  a  note  in  writing ;  this  showed  that  such 
goods  were  intended  as  were  capable  of  an  actual  delivery,  something  that 
was  corporeal,  and  not  stock  which  was  incorporeal,  nor  was  there  any  such 
thing   as  York  Buildings  stock  at  that  time. 

The  Lord  Chancellor  King  said,  "  This  question  was  before  all  the  judges 


(»)  See  2  P.  Wms.  308.  (y)  2  P.  Wms.  507. 

(ic)  Prec.  in  Ch.  533. 

*85 


Chap,  t.]         Contracts  for  the  Sale  of  Goods.  85 

of  England,  who  were  equally  divided  upon  it,  six  against  six  ;  and  therefore 
it  is  a  point  too  difficult  for  me  to  determine  upon  a  demurrer."  His  lordship, 
however,  said,  that  stock  did  not  seem  to  be  goods,  wares,  or  merchandizes 
within  the  intent  of  the  17th  clause. (z)  It  has  been  determined,  that  standing 
crops,  not  severed  from  the  *land,  but  ripe  and  fit  to  be  gathered,  when  sold 
upon  the  terms  of  their  being  taken  immediately,  are  to  be  deemed  goods 
within  the  meaning  of  this  part  of  the  clause;  for  the  advantage  which  they 
may  derive  from  the  soil  during  the  short  interval  between  the  contract  and  re- 
moval, is  merely  accidental,  and  constitutes  no  part  of  the  considera- 
tion, (a)  (63) 

2.  As  to  the  Amount  of  the  Price  of  the  Goods.]  —  Upon  the 
words,  "  Of  the  price  of  10/.  sterling  or  upwards,"  it  has  been  held,  that  where 
several  articles  were  ordered  to  the  amount  of  70/.,  but  no  single  article  was 
of  the  price  of  10/.,  it  is  to  be  deemed  one  entire  contract,  and  within  this 
elause  of  the  statute.  Thus,  in  the  case  of  Baldey  v.  Parker, (hi)  which  was 
an  action  for  goods  sold  and  delivered  ;  at  the  trial,  it  appeared  in  evidence 
that  the  plaintiffs  were  linen-drapers,  and  the  defendant  came  to  their  shop  and 
bargained  for  various  articles.  A  separate  price  was  agreed  upon  for  each, 
and  no  one  article  was  of  the  value  of  10/.  Some  were  measured  in  his  pres- 
ence ;  some  he  marked  with  a  pencil ;  others  he  assisted  in  cutting  from  a  lar- 
ger bulk.  He  then  desired  an  account  of  the  whole  to  be  sent  to  his  house, 
and  went  away.  A  bill  of  parcels  was  accordingly  made  out  and  sent  by  a 
shopman.  The  amount  of  the  goods  was  70/.  The  goods  were  afterwards 
sent  to  the  defendant's  house,  and  he  refused  to  accept  them.  The  plaintiffs 
were  nonsuited  ;  and  the  Court,  after  argument,  determined  that  the  nonsuit 
was  right.  And  Abbot  Ch.  J.  said,  "  The  first  question  is,  whether  this  was 
one  entire  contract  for  the  sale  of  all  the  goods  ?  By  holding  that  it  was  not, 
we  should  entirely  defeat  the  object  of  the  statute  ;  for  then  persons  intending 
to  buy  many  articles  at  one  time,  amounting  in  the  whole  to  a  large  price, 
might  withdraw  the  case  from  the  operation  of  the  statute,  by  making  a  sep- 
arate bargain  for  each  article.  Looking  at  the  whole  transaction,  I  am  of 
opinion  that  the  parties  must  be  considered  to  have  made  one  entire  contract 
for  the  whole  of  the  articles.  The  plaintiffs,  therefore,  cannot  maintain 
this  action,  unless  they  can  show  that  the  case  is  within  the  exception  of  the 
17th  section,  the  words  of  which  are  peculiar  ;  '  except  the  buyer  shall  accept 
part  of  the  goods  so  sold,  and  actually  receive  the  same.'  It  would  be  difficult 
to  find    words  more    distinctly  denoting    an  actual  transfer  of  the   article  from 

(s)  Vide  5  Burr,   2589.  &   1   East  Rep.   1.         (a)  Parker  x.  Mainland,   11  East  Rep.  362. 
where  it  is  said,  that  public  stock  is  not  mo-     Warwick  v.  Bruce,  2  M.  &  S.  205. 
ney,  but  a  new  species  of  property.  (6)  2  Barn.  &  Cres.  37. 

(63)  A.  sowed  the  land  of  C,  with  wheat,  on  shares  ;  and  afterwards,  assigned  all  his 
interest  in  the  growing  crop  ;  this  is  a  complete  sale  or  transfer  of  his  property  in  the  wheat, 
to  the  assignee,  who  only  can  bring  trespass  for  cutting  and  carrying  it  away.  Carter  v. 
Jarvis,  9  J.  R.  143.  As  to  the  sale  ol  standing  trees,  see  Gardner  Manu  factoring  Ce.v.  Heald, 
5  Greenl.  3S1.  * 

*8fl 


86  Of  the  Statute  of  Frauds  upon  [Part  II. 

the  seller,  and  an  actual  taking  possession  of  it  by  the  buyer.  If  we  held 
that  such  a  transfer  and  acceptance  were  complete  in  this  case,  it  would  seem  to 
follow  as  a  necessary  consequence,  that  the  vendee  might  maintain  trover  with- 
out paying  for  the  goods,  and  leave  the  vendor  to  this  action  for  the  price. 
Such  a  doctrine  would  be  highly  injurious  to  trade,  and  it  is  satisfactory  to  find 
that  the  law  warrants  us  in  saying  that  this  transaction  had  no  such  eflect." 

*3.  Of  the  Acceptance  and  Receipt  of  the  Goods.] — (63  a)  If  a  con- 
tract for  the  sale  of  goods  is  not  reduced  into  writing,  then  there  must  be  either 
an  acceptance  and  receipt  of  the  goods  in  whole  or  in  part,  or  earnest  given,  or 
part  payment.  The  contract  should  be  complete,  and  there  must  be  not  only 
an  acceptance,  but  a  change  of  possession.  An  actual  delivery,  however,  is  not 
in  all  cases  necessary  ;  for  the  thing  contracted  to  be  sold  may  be  virtually  de- 
livered ;  and  such  virtual  delivery  will  be  equally  effectual  to  supersede  the 
necessity  of  writing  and  signing ;  as,  for  instance,  if  the  goods  sold  are  pon- 
derous, and  not  capable  of  actual  delivery  ;  but  the  buyer  so  far  accepts  them  as 
to  exercise  a  right  over  them,  either  by  disposing  of  the  goods,  or  by  giving 
orders  and  directions  respecting  them  as  owner  ;  these  acts  may  countervail 
the  actual  delivery,  and  vest  the  property  in  the  buyer,  without  any  written  con- 
tract or  earnest  paid.  Thus,  in  the  case  of  Searle  and  Others  v.  Keeves,{c) 
which  was  an  action  of  assumpsit  for  the  non-delivery  of  rice  ;  and  at  the  trial 
it  was  proved,  that  on  the  26th  of  September  one  of  the  plaintiffs  had  been  at 
the  house  of  the  defendant,  who  told  him  that  he  had  a  quantity  of  rice  to  sell ; 
but  there  was  no  evidence  of  any  contract  made  at  that  time  ;  the  plaintiffs, 
however,  produced  an  order  on  Btnnet  and  Co.,  the  warehousemen,  to  deliver 
to  them  20  barrels  of  rice,  which  was  signed  by  Keeves  ;  and  it  was  also  pro- 
ved that  Keeves  had  told  them  that  he  had  sold  20  barrels  of  rice  to  Mr.  Searle 
at  17^.  per  hundred,  and  that  he  was  a  fool  for  selling  it  so  soon,  as  the  price 
of  rice  had  advanced.  The  rice  not  being  then  taken  away,  Keeves,  on  the  2d 
of  October,  countermanded  the  delivery,  in  consequence  of  which  Bennet  and 
Co.  refused  to  deliver  the  rice  to  the  plaintiffs,  who  sent  for  it  on  the  10th  of 
October  following.  The  counsel  for  the  defendant  contended,  that  as  to  this 
count  the  plaintiffs  ought  to  be  nonsuited :  they  said  that  the  statute  of  frauds, 
in  all  cases  of  sales  of  goods,  required  a  note  in  writing  specifying,  the  terms 
of  the  contract ;  and  being  meant  to  guard  against  fraud  in  contracts,  made  it 
necessary  to  specify  particularly  what  the  terms  of  the  sale  were  :  in  this  case 
there  was  no  specification  of  the  terms  ;  the  only  evidence  was,  the  order  for 
the  delivery  by  the  defendant,  which  did  not  specify  any  thing  as  to  the  price 
so  that  it  was  not  a  sufficient  note  in  writing  under  the  statute.  But  Eyre  Ch.  J. 
said,  "  The  statute  of  frauds  does  not  attach  where  there  has  been  earnest  or  a 
delivery  of  part  of  the  things  sold  ;  I  think  there  has  been  in  this  case  a  delivery 

(c)    2  Esp.  Rep.    598.  See    also  Hinde  v.  Whitehcvse,  post,  94. 


(63  a)  Sec  post,  notes  83,  84,  88. 

'87 


Chap.    I.J         Contracts  for  the  Sale  of  Goods.  87 

of  the  whole*  Keeves,  the  defendant,  gave  an  order  for  the  delivery  upon 
Bennet  and  Co.,  in  whose  possession  the  rice  then  was  ;  this  satisfies  the  stat- 
ute, and  the  plaintiffs  are  entitled  to  recover." 

And  in  a  subsequent  case  (d)  it  has  been  held,  that  it  is  not  necessary  #there 
should  be  an  actual  transfer  made  in  the  wharfinger  or  warehouseman's  books  ; 
but  the  lodging  of  the  delivery  order  is  deemed  sufficient. 

So,  in  the  case  of  Chaplin  v.  Rogers,  (e)  which  was  an  action  for  goods  sold 
and  delivered ;  and  the  case  proved  was,  that  the  parties  being  together  in  the 
plaintiff's  farm-yard,  the  defendant,  after  some  objections  and  doubts  upon  the 
quality  of  a  stack  of  hay  (particularly  the  inside  part)  then  standing  in  the  yard, 
agreed  to  take  it  at  2s.  6d.  per  hundred  weight.  Soon  after  he  sent  a  farmer 
to  look  at  it,  whose  opinion  was  unfavourable.  But  about  two  months  after- 
wards another  farmer,  of  the  name  of  Loft,  agreed  with  the  defendant  for  the 
purchase  of  some  of  this  hay,  still  standing  untouched  in  the  plaintiff's  yard, 
and  the  defendant  told  Loft  to  go  there  and  ask  what  condition  it  was  in,  say- 
ing he  had  only  agreed  for  it,  if  it  were  good.  The  plaintiff  having  informed 
Loft  it  was  in  a  good  state,  he  agreed  to  give  the  defendant  '3s.  9d.  per  hun- 
dred weight  for  it,  the  defendant  having  told  him  that  he  had  agreed  to  give  the 
plaintiff  3s.  6d.  for  it.  Loft  thereupon  brought  away  36  hundred  weight ;  but 
this  latter  fact  was  without  the  knowledge  and  against  the  direction  of  the  de- 
fendant. At  the  trial,  the  learned  judge  left  it  to  the  jury  to  decide  whether,  un- 
der the  circumstances,  there  had  been  an  acceptance  by  the  defendant ;  and 
they  found  that  there  had  been,  and  gave  501.  damages,  being  the  value  of  the 
hay  at  the  price  agreed  for.  A  rule  nisi  was  obtained,  calling  on  the  plaintiff 
to  show  cause  why  the  verdict  should  not  be  set  aside,  and  a  new  trial  had,  on 
the  grounds  that  the  learned  judge  had  left  that  as  a  question  of  fact  to  the  jury 
which  he  himself  ought  to  have  decided,  as  an  objection  in  point  of  law  arising 
on  the  statute  of  frauds  ;  and  because  the  evidence  did  not  warrant  the  ver- 
dict. But  the  Court  decided  that  there  was  sufficient  evidence  of  a  delivery  to, 
and  acceptance  by  the  defendant  to  leave  to  the  jury  ;  and  therefore  discharged 
the  rule.  And  Lord  Kenyon  Ch.  J.  said,  "  It  is  of  great  consequence  to  pre- 
serve unimpaired  the  several  provisions  of  the  statute  of  frauds,  which  is  one  of 
the  wisest  laws  in  our  statute  book.  My  opinion  will  not  infringe  upon  it ;  for 
here  the  report  states  that  the  question  was  specifically  left  to  the  jury  whether  or 
not  there  were  an  acceptance  of  the  hay  by  the  defendant,  and  they  have  found 
that  there  was,  which  puts  an  end  to  any  question  of  law.  I  do  not  mean  to 
disturb  the  settled  construction  of  the  statute,  that  in  order  to  take  a  contract 
for  the  sale  of  goods  of  this  value  out  of  it,  there  must  be  either  a  part-deliv- 
ery of  the  thing,  or  a  part-payment  of  the  consideration,  or  the  agreement  must 
be  reduced  to  writing  in  the  manner  therein  specified.  But  I  am  not  satisfied 
in  this  case  that  the  jury  have  not  done  rightly  in  finding  the  fact  of  a  delivery: 
where   *goods  are  ponderous,  and  incapable,  as  here,  of  being  handed  over 


(d)  Harman  v.    .fadersm,  2  Campb.  243.         (e)  1  East,  192. 

12  #88  *89 


89  Of  the  Statute  of  Frauds  upon         [Part  II. 

from  one  to  another,  there  need  not  be  an  actual  delivery  ;  but  it  may  be  done 
by  that  which  is  tantamount,  such  as  the  delivery  of  the  key  of  a  warehouse 
in  which  the  goods  are  lodged,  or  by  delivery  of  other  indicia  of  property. 
Now  here  the  defendant  dealt  with  this  commodity  afterwards  as  if  it  were  in 
his  actual  possession,  by  selling  part  of  it  to  another  person." 

But  it  seems  doubtful,  whether,  in  a  case  where  the  thing  sold  is  capable  of 
immediate  delivery,  as  a  horse,  the  circumstances  of  striking  the  bargain,  ac- 
cording to  a  vulgar  custom  in  Yorkshire,  by  the  buyer  passing  the  edge  of  a 
shilling  over  the  seller's  hand,  and  returning  it  into  his  own  pocket,  and  a  ver- 
bal admission  of  the  bargain,  coupled  with  the  buyer's  offering  it  for  sale,  is 
sufficient  to  satisfy  the  statute,  without  either  a  delivery  or  payment  of  the  ear- 
nest money.(/) 

And  in  the  case  of  Anderson  v.  Scot,  (g)  which  was  an  action  for  the  non-de- 
livery of  wines  sold  to  the  defendant,  it  appeared  in  evidence  that  the  wines, 
at  the  time  of  sale,  were  lying  in  the  cellars  of  the  vendor,  and  the  buyer  se- 
lected particular  pipes,  and  ordered  the  spills  or  pegs,  by  which  the  wine  is 
tasted,  to  be  cut  off,  and  his  initials  to  be  put  upon  the  pipes,  which  was  accord- 
ingly done  ;  the  buyer  also  took  the  guage-numbers  of  each  pipe.  Lord  El- 
lenborough  Ch.  J.  held  this  to  be  a  sufficient  acceptance  and  delivery  to  satis- 
fy the  statute.  So,  in  Hodgson  v.  Le  Brett,  (h)  where  a  quantity  of  linen 
and  other  articles  had  deen  purchased  at  a  shop,  and  the  buyer  wrote  her  name 
upon  the  linen  only,  the  same  learned  judge  held,  that  the  statute  was  satisfied 
as  to  the  linen,  but  not  as  to  the  other  articles. 

And  in  Elmore  v.  Stone,  (i)  where  the  purchaser  of  two  horses,  having 
neither  servant  nor  stable,  told  the  seller,  who  kept  a  livery-stable,  that  he 
must  keep  them  for  him  ;  and  accordingly  the  seller  removed  them  out  of  his 
sale-stable  into  another  stable  ;  it  was  held  a  sufficient  acceptance  and  deliv- 
ery within  the  statute.  But  in  Carter  v.  Toussaint, (k)  where  a  race-hoise 
was  sold  by  a  verbal  contract,  but  no  time  was  fixed  for  the  payment  of  the 
price,  and  it  was  agreed  that  the  horse  should  be  kept  by  the  plaintiffs  for  20 
days  without  any  charge.  At  the  expiration  of  the  20  days  the  horse  was,  by 
the  direction  of  the  defendant,  taken  by  a  servant  of  the  plaintiffs  to  Kimpton 
Park,  for  the  purpose  of  being  turned  out  to  grass  there ;  and  it  was  there  en- 
tered in  one  of  the  plaintiffs'  names  at  the  request  of  the  defendant,  who  was 
anxious  that  it  might  not  be  known  that  he  kept  a  race-horse.  The  defendant, 
however,  afterwards  refused  to  take  the  horse.  The  Court  determined,  that 
there  was  no  acceptance  of  the  horse  to  satisfy  the  words  of  the  statute.  And 
*Holroyd  Just,  observed,  "  Here,  there  was  no  change  of  possession,  as  in  the 
case  of  Elmore  v.  Stone ;  and  the  case  would  be  different  if  the  horse  had 
been  entered  at  the  park  in  the  name  of  the  defendant." 


(  f)  Bltnkinsop  v.  Clayton,  1  Mo.  Rep.  328.  (h)  1  Campb.  Rep.  233. 

7  Taunt.  S.  C.  (t)   1  Taunt.  458. 

(?)  1  Campb.  Rep.  235.  r.  (fc)  5  Barn.  &  Aid.  955. 
*90 


Chap.  1.]     Contracts  J or  the  Sale  of  Goods.  90 

So,  in  the  case  of  Tempest  v.  Fitzgerald,  (I)  where  a  horse  had  been  pur- 
chased  for  ready   money,  and  the   buyer  requested  the  seller  to  keep  it  in  his 
stables  for  a  certain  time,  and  gave  directions  as  to  its  treatment.     The  horse, 
however,  died  before   the  buyer  had  either  paid  the  price,  or  taken  it  away. 
The  Court  held,  that  there  was  no  acceptance  within  the  words  of  the  statute. 
And  Abbott  Ch.  J.  said,  "  The  statute  of  frauds  was  made  for  wise  and  ben- 
eficial  purposes,  and  ought  to  receive  such  a  construction   as  will  best  accord 
with  the   plain  and  obvious  meaning  of  the  legislature.     The   word  accepted 
imports  not  merely  that  there  should  be  a  delivery  by  the  seller,  but  that  each 
party  should  do  something  by  which  the  bargain  should  be   bound.     I  do  not 
mean,  however,  to  say,  that  if  the  buyer  were  to  take  away  the  goods  with- 
out the  assent  of  the  seller,  that  would  not  be  sufficient  to  bind  him.     In  this 
case,  payment  of  the  price  was  to  be  an  act  concurrent  with  the  delivery  of 
the  horse ;  at  any   rate  there  is  nothing  to  show  that  either  party  understood 
that  the  one  was  to  precede  the  other.     The  defendant,  therefore,  had  no  right 
of  property  in  the  horse,  until  the  price  was  paid ;  he  could  not  then   exercise 
any  right  of  ownership.     If  he  had   at  that  time   rode  away  with  the  horse, 
the   plaintiff  might  have  maintained   trover."     Holroyd  Just,  said,  "  That  the 
object  of  the  statute  of  frauds  was  to  remove  all  doubts  as  to  the  completion 
of  the  bargain  ;  and  it  therefore   requires  some  clear  and  unequivocal  acts  to 
be  done  in  order  to  show  that  the  thing  had  ceased  to  be  in  fieri.     Those  acts 
are,  either  that  the  buyer  shall  accept  part  of  the  goods  sold,  and  receive  the 
same,  or  give  something  in  earnest  or  in  part  payment,  or  that  the  contract  be 
reduced  to  writing.     These  are  all  acts  that  clearly  and   unequivocally  show 
that  the  bargain  is  executed." 

So,  in  the  case  of  Howe  v.  P  aimer, {m)  where  the  defendant  had  verbally 
agreed  with  an  agent  of  the  plaintiff  for  the  purchase  of  twelve  bushels  of  tares, 
(then  constituting  a  part  of  a  larger  quantity  in  the  plaintiffs  possession,) 
which  were  to  remain  in  the  vendor's  possession  till  called  for  ;  and  the  plain- 
tiff's agent,  on  his  return  home,  had  measured  the  twelve  bushels,  and  set  them 
apart  for  the  vendee  ;  the  Court  determined,  that  this  did  not  amount  to  an  ac- 
ceptance within  the  statute  ;  and  they  distinguished  this  case  from  that  of  El- 
more v.  Stone,  because  in  that  case  an  expence  had  been  incurred  by  the  sel- 
ler on  account  of  the  buyer,  and  by  his  direction  ;  and  that  was  considered 
•evidence  of  acceptance  on  the  part  of  the  buyer.  And  Mr.  Justice  Bayley, 
in  referring  to  the  case  of  Elmore  and  Stone,  said,  "  That  case  goes  as  far 
as  any  case  ought  to  go ;  and  I  think  we  ought  not  to  go  one  step  beyond  it ; 
and  I  must  say,  that  I  doubt   the  authority  of  that  decision." 

So,  in  the  case  of  Price  v.  Lea,  (n)  where  a  contract  was  made  for  the  sale 
of  two  different  articles,  one  of  which  was  agreed  upon  as  to  quantity,  quality, 
and  price  ;  but  for  the  other  the  buyer  offered  a  price,  which  the  traveller  of  the 
seller  did  not  think  himself  warranted  in  taking,  but  said  he  would  write  to  his 

(I)  3  Barn.  &  Aid.  680.  Emery,  ante,  84. 

(m)  3  Barn.  &  Aid.  321.  See  alio  AsUy  v.        (n)  1  Barn.  &  Cres.  156. 

*91 


91  Of  the  Statute  of  Frauds  upon         [Part  11. 

principal,  and  if  he  (the  buyer)  did  not  receive  a  letter  in  one  or  two  days,  re- 
fusing to  execute  the  order,  he  might  conclude  that  his  offer  was  accepted.  The 
traveller  did  not  write,  but  sent  both  articles.  The  buyer  accepted  and  tender- 
ed the  price  of  the  first  article,  but  refused  to  accept  or  pay  for  the  other.  And 
in  action  brought  for  the  price  of  both  articles,  the  defendant  pleaded  a  tender  of 
the  price  of  the  first  article,  and  non-assumpsit  to  the  other.  The  Court  deter- 
mined, that  the  buyer  was  not  liable  for  the  last  parcel.  And  Holroyd  Just,  said, 
M  A  contract  for  the  first  article  was  made  between  the  defendant  and  the  trav- 
eller ;  but  the  agreement  for  the  residue  cannot  be  considered  as  complete  until 
the  time  allowed  to  the  plaintiffs  for  deliberation  had  expired  ;  there  was  not  then 
one  entire  contract  for  both  the  articles,  so  as  to  make  the  acceptance  of  one  the 
acceptance  of  the  whole." 

It  is  now  settled,  that  a  delivery  without  an  ultimate  acceptance,  and  such  as 
completely  affirms  the  contract,  is  not  sufficient  to  satisfy  the  words  ofthe  statute. 

This  was  determined  in  the  case  of  Kent  v.  Huskinson,  (o)  which  was  an  ac- 
tion of  assumpsit  for  goods  sold  and  delivered,  tried  before  Lord  Alvanlcy,  Ch. 
J.  The  subject  of  the  action  was  a  bale  of  sponge  sent  by  the  plaintiff,  a  whole- 
sale dealer  in  that  article,  residing  in  London,  to  the  defendant,  a  retail  dealer 
residing  in  Staffordshire.  Some  short  time  before  the  sponge  was  sent  by  the 
plaintiff,  he  had  been  at  the  place  where  the  defendant  resided,  and  had  received 
from  him  a  verbal  order,  under  which  he  had  acted  in  sending  the  sponge,  and 
the  price  charged  was  11  s.  per  pound,  amounting  altogether  to  751.  Soon  after 
the  sponge  was  sent,  the  defendant  wrote  the  following  letter  to  the  plaintiff: 
♦'After  receiving  a  letter  from  your  house  in  town,  stating  the  bale  of  sponge 
was  sent  by  your  direction,  I  called  on  a  friend  or  two  who  are  competent  judg- 
es ofthe  article,  and  asked  them  to  say,  according  to  the  present  price  of  sponge, 
what  it  was  worth  ;  the  answer  was,  not  more  than  six  shillings  per  pound  ; 
have  therefore  returned  it  to  you  by  the  same  conveyance  it  was  forwarded  by 
to  this  place.  In  future  will  select  what  sponge  I  may  want  personally,  other- 
wise will  appoint  some  confidential  friend  for  that  purpose."  The  plaintiff's 
son  being  at  the  defendant's  house  soon  after  the  sponge  was  returned,  was  told 
by  him  that  he  had  resolved  not  to  keep  the  article,  because  it  was  not  so  good 
as  he  had  expected.  It  was  objected  for  the  defendant,  that  inasmuch  as  this 
was  a  contract  for  the  sale  of  goods  of  more  than  ten  pounds  value,  the  case  fell 
within  the  17th  section  ofthe  statute  of  frauds,  for  want  of  a  note  or  memoran- 
dum in  writing,  and  consequently  the  plaintiff  could  not  recover.  His  lordship 
being  of  this  opinion,  nonsuited  the  plaintiff.  A  motion,  however,  was  after- 
wards made  for  a  rule  to  show  cause  why  the  nonsuit  should  not  be  set  aside. 
But  the  Court  were  clearly  of  opinion,  that  the  case  was  within  the  statute,  and 
therefore  refused  the  rule.  And  his  lordship  said,  "  How  is  any  judgment  to  be 
formed  as  to  the  nature  of  the  contract  between  these  parties  ?  Possibly  the 
order  was  for  the  best,  possibly  for  the  second  best  sponge,  or  sponge  of  some 


(o)  3  Bos.  &Pul.  233. 
k93 


Chap.  1.]         Contracts  for  the  Sale  of  Goods.  92 

peculiar  quality  ;  all  which  circumstances  are  left  in  a  state  of  uncertainty.     It 
was  this  very  uncertainty,  and  the  frauds  to  which  it  might  lead,  that  the  statute 
had  in  contemplation,  and  meant  to  guard  against.      The  only  affirmance  of  any 
contract  to  be  collected  from  the  evidence  is  an  affirmance  of  some  sort  of  order 
for  some  sort  of  sponge  ;  and  it  appears  that  the  moment  the  article  reached  the 
defendant  and  was  examined,  he  sent  it  back  to  the  plaintiff,  saying  it  was  not 
that  sort  of  sponge  which  he  wanted  and  had  ordered.     The  defendant's  letter 
cannot,  as  it  appears  to  me,  be  construed  into  any  thing  like  an  acceptance,  so  as 
to  bring  this  case  within  the  exception  which  has  been  relied  on."     And  Heath 
Just,  said,  "According  to  the  words  of  the  statute,  the  exception  does  not  ap- 
ply, unless  the  vendee  both  receive  and  accept.      Now  that  acceptance  I  cannot 
consider  to  be    any  other  than  the  ultimate  acceptance,  and  such  as  completely 
affirms  the  contract.     What  the  nature  of  this  order  was,  or  under  what  circum- 
stance it  was  given,  was  not  proved.     Possibly  the  sponge  was  sent  down  upon 
speculation  only." 

A  parol  dispensation  of  the  written  terms  as  to  the  periods  of  delivery,  is 
not  affected  by  the  statute,  where  the  original  contract  was  made  conformably 
toit.(63  6.)  This  was  determined  in  the  ease  of  Cuff  v.  Pen7i,{p)  where  it  ap- 
peared, that  the  defendant  had  agreed,  by  a  written  contract,  to  purchase  of  the 
plaintiff  300  hogs  of  bacon,  to  be  delivered  at  fixed  times,  and  in  specified 
quantities  ;  and  after  part  of  the  bacon  had  been  delivered  to  the  defendant,  he 
requested  the  plaintiff,  as  the  sale  was  dull,  not  to  press  the  delivery  of  the 
residue,  to  which  the  plaintiff  assented  ;  and  on  the  defendant  afterwards  refus- 
ing to  accept  the  rest  of  the  bacon,  the  plaintiff  brought  an  action  for  the  non- 
acceptance  ;  and  it  was  objected  that  the  action  would  not  lie  ;  for  that  the  al- 
teration of  the  agreement  could  neither  vary  the  contract,  nor  substitute  a  new 
one  in  its  place,  as  it  would  be  void  by  the  statute  of  frauds  ;  there  being  neith- 
er a  part  acceptance,  nor  a  part  payment  under  it.  The  Court,  however,  held 
it  to  be  a  mere  parol  dispensation  of  the  terms  of  the  original  contract  in  res- 
pect to  the  times  of  the  delivery ;  and  therefore  that  it  was  not  affected  by  the 
statute  of  frauds. 

The  question  of  acceptance  and  receipt  of  the  goods,  is  a  mixed  question 
of  law  and  of  fact;  and  must,  like  all  other  cases,  as  far  as  regards  the  fact, 
be  left  to  the  jury,  (q) 

If  goods  are  ordered  verbally  by  a  trader  in  the  country,  of  a  merchant  in 
London,  the  delivery  of  them  by  the  vendor  to  a  carrier  is  a  sufficient  delivery 


(p)   1  Mau.  &  Sel.  21.  (q)  Blenkinsop  v.  Clayton,  1  Mo.  328. 


(63  b.)  See  Keating  v.  Price,  1  J.  C.  22.  The  time  for  performing  the  condition  of  a  bond 
may  be  enlarged,  or  the  farther  performance  of  it,  may  be  waived  by  parol.  Fleming  v. 
Gilbert,  3  J.  R.  528.  So,  an  agreement,  under  seal,  for  work  and  labor,  may  be  releasee?  by 
parol.  Lattimore  v.  Harsden,  14  J.  R.  330.  But  in  those  cases,  where  parol  evidence  has 
been  admitted  of  an  agreement  to  enlarge  the  time,  or  dispense  with  performance,  such 
agreement  has  been  subsequent  to  the  original  contract,  and  admitted  the  effect  of  it ;  but 
the  evidence  would  be  inadmissible  to  shew  the  original  agreement  to  be  different  from  what 
it  plainly  imports  on  its  face.     Thompson  v.  Ketcham,  8  J.  R.  146.  2d  edit. 

♦93 


03  Of  the  Statute  of  Frauds  upon         [Part  II. 

to  satisfy  the  statute,  where  the  buyer  has  been  accustomed  to  receive  goods 
from  the  vendor  by  the  same  conveyance,  (r)  But,  in  the  case  of  Hanson  v. 
Armitage,  (s)  which  was  an  action  for  the  price  of  two  chests  of  tea.  At  the 
trial  before  Abbott  Ch.  J.,  it  appeared  in  evidence,  that  the  plaintiffs,  tea  deal- 
ers in  London,  had  been  in  the  habit  of  shipping  teas  to  the  defendant,  who 
was  a  grocer,  resident  at  Barnsley  in  Yorkshire.  The  usual  course  was  to 
deliver  the  tea  at  the  wharf  of  one  Staunton  in  London,  to  be  forwarded  by 
the  first  ship  ;  and  several  parcels  of  tea,  sent  in  this  manner,  had  been  paid 
for  by  the  defendant.  On  the  3d  June  1820,  the  plaintiffs  delivered  at  Staun- 
ton's wharf,  two  chests  of  tea  to  be  forwarded  to  the  defendant  in  the  usual 
manner.  The  vessel  in  which  this  tea  was  shipped  was  lost  on  her  voyage. 
The  plaintiffs,  on  the  10th  of  June,  transmitted  by  post  to  the  defendant 
an  invoice  of  the  tea,  and  on  the  13th  the  defendant  returned  the  same  by 
post,  and  stated  "  that  he  had  nothing  to  do  with  it,  as  he  had  heard  of  the  loss 
of  the  ship  before  the  invoice  arrived,  and  that  he  would  not  take  to  the 
account."  His  lordship  directed  the  jury  that  they  might  fairly  presume  that 
the  defendant  had  given  a  parol  order  for  the  tea,  and  stated  that  he  would 
reserve  the  question  for  the  opinion  of  the  Court,  whether  the  delivery  of  the 
tea,  and  the  acceptance  of  it  by  the  wharfinger,  for  the  purpose  of  transmitting 
it  by  the  usual  conveyance,  was  to  be  deemed  an  acceptance  by  the  buyer 
within  the  meaning  of  the  29  Car.  2.  c.  3.  s.  17.  They  accordingly  found  a 
verdict  for  the  plaintiffs.  And  after  argument,  the  Chief  Justice  said,  "  The 
Court  are  of  opinion,  that  the  acceptance  in  this  case,  not  being  by  the  party 
himself,  was  not  sufficient :  and  he  referred  to  the  case  of  Howe  v.  Palmer,  (r) 
where  it  was  held,  that  there  could  be  no  actual  acceptance,  so  long  as  the 
buyer  continued  to  have  a  right  to  object  either  to  the  quantum  or  quality  of 
the  goods." 

*Upon  a  sale  by  sample,  it  has  been  determined,  that  if  the  delivery  of  a  sam- 
ple of  goods  from  the  bulk  be  considered  and  received  as  part  of  the  bulk 
bought,  this  is  a  sufficient  acceptance  within  the  meaning  of  the  statute.  But 
unless  it  is  so  stipulated,  it  is  not  to  be  deemed  as  part  of  the  bulk.  Thus,  in 
the  case  of  Hinde  v.  Waterhoase,  (u)  which  was  an  action  upon  a  sale  of  sugar 
by  public  auctien.  The  sugar  was  sold  in  hogsheads,  and  out  of  each  hogshead 
was  taken  half  a  pound  as  a  sample  ;  but  such  sample,  by  the  terms  and  condi- 
tions of  sale,  was  so  far  treated  as  a  part  of  the  entire  bulk  delivered,  that  it  was 
considered  in  the  original  weighing  as  constituting  a  part  of  the  bulk  actually 
weighed  out  to  the  buyer,  and  allowed  for  specifically,  if  he  should  chuse  to 
have  the  commodity  reweighed.  Lord  Ellenborough  Ch.  J.  said,  "  I  cannot 
but  consider  the  sample  as  part  of  the  goods  sold  under  the  terms  of  the  sale, 
accepted  and  actually  received  as  such  by  the  buyer.  And  although  it  be  de- 
livered partly  alio  intuitu,  namely  as  a  sample  of  quality,  it  does  not  therefore 


(r)  Hart  v.  Sattley,  3  Campb.528.  (0  Ante,  90. 

(s)  5  Barn.  &  Aid.  557.  And  see  Jliley  v.  (u)  7  East  Rep.  558.     See  also  Klinitz  v. 

Emery,  4  M.  &  S.  262.  Surrey,  5  Esp.  267. 
*94 


Chap.  1.]  Contracts  for  the  Sale  of  Goods.  94 

prevent  its  operating  to  another  consistent  intent,  also  in  pursuance  of  the  pur- 
pose of  the  parties,  as  expressed  in  the   conditions  of  sale,  namely,  as  a  part 
delivery  of  the  thing  itself,  as  soon  as  in  virtue  of  the  bargain  the  buyer  should 
be  entitled  to  retain,  and  should   retain  it  accordingly.     And  the   Court  are  of 
opinion,  that  the  sample  must  be  considered  as  part  of  the  goods  sold. 

But  in  the  case  of  Cooper  v.  Elston^  (u)  which  was  an  action  of  assumpsit, 
brought  to  recover  the  damages  sustained  by  the  plaintiff  in  consequence  of  the 
defendant's  not  delivering   50  quarters  of  wheat  pursuant  to  his  contract  with 
the  plaintiff.    And  the  facts  were  as  follow  :  The  defendant  on  the  4th  of  July 
1795,  at  Nottingham,   sold  to  the  plaintiff  by  sample  50   quarters  of  wheat  at 
4  guineas  per  quarter  :  the  wheat  to  be   delivered  by  the    defendant  to  the 
plaintiff  at   Gainsborough.     Two   days   afterwards   the  defendant  delivered  to 
the  plaintiff  at  Nottingham  the  sample  by  which  he  had  sold  the  wheat  to  him  ; 
but  such  sample  was  no   part  of  the  50  quarters   to  be  delivered  at   Gainsbo- 
rough.    No  money  was  paid  by  the  plaintiff  to  the  defendant  on  account  of  the 
wheat ;  nor  was  there  any  memorandum  in  writing  signed  by  the  parties.     The 
defendant  afterwards  refused  to  deliver  the  wheat.     The  Court  were  of  opinion 
that  this  case  came  within   the  17th  section  of  the  statute  ;  and  therefore  judg- 
ment was  given  for  the  defendant.     And  Lord  Kenyon,   Ch.  J.  said  :  "After 
this  question  has  been  afloat  so  long  in  the  courts,  I  am  glad  that  by  the  very 
able  decision  of  the  Court  of  Common  Pleas,  in  the  case  of  Randeau  v.  Wyatt, 
the  construction  of  this  clause  of  the  statute  of  frauds  is  brought  back   to  the 
manifest  intention  of  the  legislature  in  making  that  provision.     To  the   author- 
ity *of  that  case   I   entirely  subscribe,   and,  in  my   opinion,    it   governs  the 
present.     The   doctrine  which  was  laid  down    in  Clayton  v.    Andrews,(v)  as 
to  executory  contracts  not  being   within  the    statute,  was   taken  from  Towers 
v.  Osborne.(w)  I  will  not  pretend  to  say  that  those  cases  were  not  rightly  decid- 
ed upon  their    particular  circumstances.     The  latter  was  a  mere    contract  for 
work  and  labour ;  the  thing  contracted  for  did  not  exist   at  the  time.     In  the 
former,  also,  something   was   required    to  be  done  in  order   to  put  it  in   the 
state  in  which  it  was  contracted  to  be  sold.     But  at  any  rate  I  am  at  a  loss 
to  discover  how  this  can  be  called  an    executory  contract  for  the  sale  of  the 
goods   in  question.     The  thing   sold  existed  in  solido  at  the  time  of  the  con- 
tract of  sale.     I  am  not  able  to   distinguish  this  case  from  that  of  Randeau  v. 
Wyatt ;  and  the    grounds  and  principles  of  that    decision   are  so  amply   de- 
tailed in  the  report  of  it,  that  it  is  unnecessary  to  add  any  thing  more.     With 
respect  to   this  coming   within   one  of  the    exceptions  of  the   statute  on  ac- 
count of  the  acceptance  of  the  sample  ;  there   is  no  pretence  for  it,  for  the 
case  expressly    states,  that  the  sample  was  no  part  of  the  goods   contracted 
to  be  delivered." 

4.  Of  Earnest  given  to  bind  the  Bargain,  or  of  Part  Payment.] — 

(u)  7  Term  Rep.  14.     See  also  Alexander         (t>)  Ante,  82. 
v.  Camber,  1  H.  Bl.  20.  S.  P.,   and    Taber  v.         (to)  Ibid. 
West,  Holt's  Ni.  Pri.  Rep.  179. 

♦95 


93  Of  the  Statute  of  Frauds  upon         [Part  II. 

It  is  observed,  (x)  "  that  where  part  of  the  price  is  paid  down,  if  it  is  but  a 
penny,  or  any  portion  of  the  goods  is  delivered  by  way  of  earnest,  it  is 
binding.  The  thing  given  as  earnest  need  not  be  money,  but  may  be  any 
other  symbol,  as  a  ring  or  glove,  <fcc.  But  to  constitute  earnest,  the  thing 
given  should  be  expressed  by  the  buyer,  to  be  as  a  token  of  ratification  of 
the  contract.  But  it  seems,  that  what  i3  termed  in  Yorkshire  striking  the 
bargain  with  a  shilling,  that  is,  for  the  buyer  merely  to  draw  the  edge  of  the 
shilling  over  the  hand  of  the  vendor  ;  is  not  sufficient  to  satisfy  the  statute  of 
frauds,  either  as  earnest  or  part  payment. 

5.   Of    the  Note  or  Memorandum  signed   bv  the  Parties    or  their 
Agents   thereunto  lawfully   authorized.] — The    note  or  memorandum 
required  by   the  statute   need   not  be   drawn   up    in  any  particular    form  of 
words.     It    may  be  contained  in  a  letter,  or  other  writing  referred  to  by  letter  : 
but  in  whatever  form  the    writing  may  be,    the   contract  must  be  certain,  and 
it  must  also  be  signed    with  the   name   of  the  party  to  be  charged  therewith, 
or  his  agent  lawfully  authorized  ;  otherwise  the  contract  will  be  void,  (y) (64) 
Thus,  in  the  case    of  Egerton  v.    Matthews    and  another,^)    which    was  an 
action  on   the  case    against  the  defendants   for    not   accepting  and  paying  for 
certain  goods,   which  they  had  contracted  to  purchase  by  the  following  mem- 
orandum  in*writing:  "We    agree  to    give    Mr.  Egerton  19 d.  per  pound  for 
30  bales    of  Smyrna  cotton,  customary   allowance,  cash  3  per  cent,  as    soon 
as  our  certificate  is   complete.     (Signed)  Matthews  and    Turnbull,  and  dated 
2d  of  Sept.  1803."     At  the  trial,  before    Lord    Ellenborough  Ch.   J.    it   was 
objected  on   the  authority  of  Wain  v.  Warlters,   (a)  that    the    contract  being 
altogether  executory,  and  no  consideration  appearing  on  the  face  of  the  writ- 
ing for  the  promise,  nor  any   mutuality  in  the  engagement,  it  was  void  by  the 
statute  of  frauds.     And  it  not   being  at   the  time  adverted   to  that  the    case 
cited   turned  upon  the  meaning  of  the  word  agreement    (i.  e.  to  pay    the  debt 
of  another)  in  the  4th  clause   of  the   statute,  and  that  this  case  was   governed 
altogether  by   the  17th  clause,  the   object   and  wording  of  which  is  different, 
which  has  not  the    word  agreement,   the  plaintiff  was   nonsuited.     But   on  a 
motion   for   setting  aside  the  nonsuit,  when   the  attention  of  the    court  was 
called  to  the   difference  of  the  two  clauses,   Lord  Ellenborough,  on  granting 
a  rule   nisi,  expressed  his  assent  to  the  distinction  between  the    two    cases, 
and    said,  that  the   nonsuit    had   proceeded     upon   a  mistake   at    the   trial    in 
supposing  that  they  were   the   same.     And,  at   a  subsequent  day,  on  showing 
cause    against  the  rule,   the    Court  determined    that   the    case  did  not    come 
athin  the   statute,  though  the  contract  was  not   signed  by  the  seller.     And 


wi 


(r)  2  Bl.  Com.  447.  (z)  6  East,  307. 

(y)  Vide  Roberts  on  the  stat.  of  frauds,  (a)  5  East,  10.  Et  vide  post,  ch.  2. 

105  to  120. 


(64)  The  form  of  the  memorandum  is  not  material ;  but  it  must  state  the  contract  with 
so  much  certainty  that  the  substance  of  it  may  be  understood  from  the  writing  itself,  with- 
out recourse  to  extrinsic  evidence.     Bailey  v.  Ogdert,  3  J.  R.  399. 
•96 


Chap.  1.]         Contracts  for  the  Sale  of  Goods.  96 

his  lordship  observed,  "  that  the  words  of  the  statute  were  satisfied  if  there 
were  some  note  or  memorandum  in  writing  of  the  bargain  signed  by  the  par- 
ties to  be  charged  by  such  contract."  And  this  was  a  memorandum  of  the 
bargain,  or  at  least  of  so  much  of  it  as  was  sufficient  to  bind  the  parties  to 
be  charged  therewith,  and  whose  signatures  to  it  is  all  that  the  statute  re- 
quires." So,  where  an  order  was  given  for  a  quantity  of  goods,  and  a  bill 
of  parcels  with  the  vendors  name  printed  thereon  delivered  at  the  same  time 
to  the  buyer,  a  subsequent  letter  written  and  signed  by  the  vendor,  referring 
t©  the  order,  was  connected  with  the  bill  of  parcels,  so  as  to  raise  a  sufficient 
contract  in  writing  within  the  17th  clause  of  the  statute.  Thus,  in  the 
case  of  Saunderson  v.  Jackson  and  another,  (b)  which  was  an  action  on  the 
case  against  the  defendant  for  not  delivering  1000  gallons  of  gin  to  the  plaintiff 
within  a  certain  time,  according  to  a  bargain  entered  into  between  them. 
There  was  a  second  count  for  not  delivering  within  a  reasonable  time.  At 
the  trial,  the  contract  for  the  delivery  of  the  gin  having  been  proved  on  the 
part  of  the  plaintiff,  the  defendants  insisted  that  the  case  was  within  the  statute 
of  frauds,  inasmuch  as  there  was  no  note  or  memorandum  in  writing  of  the 
bargain.  The  circumstances  were  as  follow ;  At  the  time  the  order  for  the 
gin  was  given  by  the  plaintiff  to  the  defendants,  a  bill  of  parcels  was  delivered 
to  the  former,  the  printed  part  of  which  was  "  London.  *Bought  of  Jackson 
and  Hankin,  distillers,  No.  8,  Oxford  Street,''''  and  then  followed  in  writing, 
"  1000  gallons  of  gin,  1-  in  5.  gin  7s.  350Z."  About  a  month  after  the  above 
period  the  defendants  also  wrote  the  following  letter  to  the  plaintiff,  "  Sir,  we 
wish  to  know  what  time  we  shall  send  you  a  part  of  your  order,  and  shall  be 
obliged  for  a  little  time  in  delivery  of  the  remainder  ;  must  request  you  to  re- 
turn our  pipes.  We  are,  your  humble  servants,  Jackson  and  Hankin."  On 
this  evidence  his  lordship  directed  the  jury  to  find  a  verdict  for  the  plaintiff, 
reserving  the  point  made  for  the  consideration  of  the  Court.  When  the  case 
came  on  for  argument,  the  Court  were  of  opinion,  that  it  was  not  within  the 
statute  :  And  Lord  Eldon  Ch.  J.  said,  "  This  bill  of  parcels,  though  not  the 
contract  itself,  may  amount  to  a  note  or  memorandum  of  the  contract  within 
the  meaning  of  the  statute.  (65)  The  single  question  therefore  is,  whether 
if  a  man  be  in  the  habit  of  printing  instead  of  writing  his  name,  he  may  not  be 
said  to  sign  by  his  printed  name,  as  well  as  his  written  name  ?  At  all  events, 
connecting  this  bill  of  parcels  with  the  subsequent  letter  of  the  defendants,  I 
think  the  case  is  clearly  taken  out  of  the  statute  of  frauds.  For  although  it 
be  admitted  that  the  letter  which  does  not  state  the  terms  of  the  agreement 
would  not  alone  have  been  sufficient,  yet  as  the  jury  have  connected  it  with 
something  which  does,  and  the  letter  is  signed  by  the  defendants,  there  is  then 

(6)  2  Bos.  &  Pul.  238.  3  Esp.  Rep.   130.  S.  C.  See  also  Fowle  v.  Freeman,  9  Vee.  jun. 
351.  Coles  v.  Trecothick,  ibid.  251. 

(65)  See  Whihoell  v.  Wyer,  11  Mass.  Rep.  6. 

13  '07 


97  Of  the  Statute  of  Frauds  upon  [Part  II. 

a  written  note  or  memorandum  of  the  order,  which  was  originally  given  by 
the  plaintiff,  signed  by  the  defendants.  It  has  been  decided  that  if  a  man 
draw  up  an  agreement  in  his  own  hand  writing  beginning,  "  I,  A.  B.  agree, 
&c,"  and  leave  a  place  for  a  signature  at  the  bottom,  but  never  sign  it,  it 
may  be  considered  as  a  note  or  memorandum  in  writing  within  the  statute. 
And  yet  it  is  impossible  not  to  see  that  the  insertion  of  the  name  at  the  be- 
ginning was  not  intended  to  be  a  signature,  and  that  the  paper  was  meant  to  be 
incomplete  until  it  was  further  signed.  This  last  case  is  stronger  than  the 
one  now  before  us,  and  affords  an  answer  to  the  argument  that  this  bill  of 
parcels  was  not  delivered  as  a  note  or  memorandum  of  the  contract." 

But,  a  note  or  memorandum  not  containing  the  name  of  the  buyer,  and 
signed  by  the  seller  only,  is  not  a  sufficient  signing  within  the  statute.  This 
was  determined  in  the  case  of  Champion  and  another  v.  Plummer  (c)  which 
was  an  action  against  the  defendant  for  not  delivering  to  the  plaintiffs  20  pun- 
cheons of  treacle  bought  of  him  by  the  plaintiffs,  at  37s.  per  hundred,  to  be 
delivered  on  the  10th  of  December.  At  the  trial,  it  was  proved,  that  a  bar- 
gain for  the  treacle  in  question  was  made  between  the  plaintiff's  clerk  and 
the  defendant,  as  stated  in  the  declaration,  and  that  the  following  note  was 
made  by  the  plaintiff's  clerk  in  a  common  memorandum  book,  and  signed  by 
the  defendant  as  under  ;  *"  Bought  of  W.  Plummer  20  puncheons  of  treacle, 
37'0  to  be  delivered  by  10th  December.  (Signed)  Wm.  Plummer,  31st  Octo- 
ber:' 

On  the  part  of  the  defendant  it  was  objected,  that  this  did  not  amount  to 
a  sufficient  note  or  memorandum  of  the  contract  within  the  statute  of  frauds 
as  it  was  not  signed  by  the  purchaser ;  and  the  plaintiff  was  nonsuited.  And 
though  a  rule  nisi  was  afterwards  obtained,  calling  on  the  defendant  to  show 
cause  why  the  nonsuit  should  not  be  set  aside,  and  a  new  trial  had,  yet  the 
Court  ultimately  decided  in  favour  of  the  objection.  And  Mansfield  Ch.  J., 
before  whom  the  cause  was  tried,  observed,  "  How  can  that  be  said  to  be  a 
contract,  which  does  not  state  who  are  the  contracting  parties  ?  By  this 
note  it  does  not  at  all  appear  to  whom  the  goods  were  sold.  It  would  prove 
a  sale  to  any  other  person  as  well  as  to  the  plaintiffs ;  there  cannot  be  a 
contract  without  two  parties,  and  it  is  customary,  in  the  course  of  business 
to  state  the  name  of  the  purchaser  as  well  as  of  the  seller,  in  every  bill  of 
parcels.  This  note  does  not  appear  to  me  to  amount  to  any  note  or  memo- 
randum in  writing  of  a  bargain."  A.nd  of  this  opinion  were  the  other  judg- 
es ;  and  accordingly  the  rule  was  discharged.  So,  in  Cooper  v.  Smith,  (d)\l 
was  determined,  that  a  memorandum  of  sale  made  by  the  seller's  order  in 
his  own  book,  but  without  any  signature,  does  not  take  the  case  out  of  the 
statute.  But,  in  Allen  v.  Burnet,  (e)ihe  Court  held,  that  an  order  for  goods 
written  and    signed  by   the  agent  of  the  seller,  in  a  book  of  the  buyer,  may 


(c)  1  New  Rep.  252.     5  Esp.  Rep.  240.  (<•)  3  Taunt.  169. 

(d)  15  East  Rep.  103. 

*98 


Chap.  1.]       Contracts  for  the  Sale  of  Goods.  98 

be  connected  with  a  letter  of  the  seller  to  his  agent,  mentioning  the  name 
of  the  buyer,  and  with  a  letter  of  the  buyer  to  the  seller,  claiming  perform- 
ance of  the  order  so  as  to  constitute  a  complete  contract  within  the  stat- 
ute. (66) 

6.  Of  the  Signing  by  an  Agent  thereunto  lawfully  authorized.] 
The  agent  here  mentioned  must  be  a  person  unconnected  with  the  contract ; 
and  therefore  one  of  the  contracting  parties  cannot  be  an  agent  for  the  other, 
to  satisfy  the  words  of  the  statute.  Thus,  in  the  case  of  Wright  v.  Dar- 
mah,(f)  where  one  of  the  contracting  parties  wrote  a  memorandum  of  the 
transactions,  and  signed  it  in  the  presence  and  with  the  approbation  of  the  other. 
It  was  held,  that  he  could  not  by  so  doing  be  considered  as  the  agent  of  the 
other.  The  authority  given  to  an  agent  to  sign  a  contract  for  the  sale  of 
goods,  within  this  clause  of  the  statute,  need  not  be  in  writing ;  but  a 
parol  appointment  is  sufficient ;  (g)  (67)  and  such  appointment  need  not  be 
given  with  a  view  to  a  particular  transaction,  but  generally  to  act  as  agent  in 
negotiating  and  transacting  business  in  the  way  of  trade  and  merchandize,  (h) 
This  authority  *however,  like  all  others  of  a  similar  nature,  may  be  revoked 
at  any  time  pending  the    contract,   and  before  it  is  signed,  (i) 

A  broker  who  is  employed  to  sell  goods,  and  agrees  for  the  sale  of  them, 
and  gives  to  the  buyer  and  seller  respectively  a  copy  of  the  sale  notes,  he  is  to 
be  considered  as  agent  for  both  parties  ;  and  his  original  note  is  sufficient  to 
satisfy  the  statute  of  frauds.  Thus,  in  the  case  of  Rucker  v.  Ca?nmeyer,(k) 
which  was  an  action  of  assumpsit  to  recover  the  price  of  ten  hogsheads  of  su- 
gar sold  by  the  plaintiff  to  the  defendant ;  and  the  facts  were,  that  the  plaintiff 
having  a  quantity  of  sugars  to  sell,  samples  were  sent  (as  is  usual)  to  the  plain- 
tiff's broker,  which,  together  with  other  samples  of  different  sugars,  were  ex- 
posed to  sale,  and  the  defendant  examined  the  samples,  and  fixed  on  those  for 
which  the  action  was  brought ;  and  he  asked  the  broker  from  whence  the  su- 
gars had  come,  and  was  answered,  "  that  they  came  from  the  north  —  from 
Scotland."  He  asked  the  price,  and  was  told  63s.  per  cwt.  The  broker  said 
further,  that  he   afterwards  brought  the  plaintiff  and  defendant  together,  when 


(/)  2  Campb.  203.     Et  vide  15  East,  203.  (i)  2  Campb.  339.  in  notis. 

5  Barn.  &  Aid.  333.  (A:)   1  Esp.  Rep.  105.  Et  vide   Chapman  v. 

(g)  5  Vin.  Abr.  524.  fol.   ed.     0  Ves.  jun.  Partridge,  5  Esp.  256.  Uinde  v.  Waterhonse,  7 

251.  East  Rep.  599. 


(h)  Loft's  Rep.  332. 


(66)  On  a  contract  for  the  sale  and  delivery  of  goods,  a  memorandum  signed  by  the  ven- 
dor only,  and  accepted  by  the  purchaser,  is  mutually  obligatory.  Roget  v.  Merritt,  2  Caines, 
1 17,  120.  Douglass  v.  Spears,  2  Nott  &  M'Cord,  207.  See  Penniman  v.  Hartshorn,  13  Mass. 
Rep.  S7.  But  an  entry  made  by  the  vendor  of  goods,  in  his  book  of  sales,  of  the  name  of 
the  purchaser,  and  of  the  terms  of  the  contract  of  sale,  which  was  read  to  the  agent  of  the 
purchaser,  who  made  the  contract,  and  assented  to  by  him  as  correct,  is  not  a  sufficient 
memorandum  in  writing,  within  the  statute  of  frauds  ;  it  not  being  signed  by  the  party  to  be 
charged,  nor  by  his  agent.  Bailey  v.  Ogden,  3  J.  11.  399.  Whether  the  vendor  is  bound  by 
such  memorandum,  so  that  the  vendee  could  enforce  the  contract  against  him  ?   Quere. 

(67)  The  authority  of  a  broker  to  make  a  contract  for  the  sale  of  goods,  need  not  be  in 
writing.     Merritt  v.  Clason,  12  J.  R.  102.     S.  C.  14  J.  R.  481.,  in  Error. 

•99 


99  Of  the  Statute  of  Frauds  upon  [Part  II. 

he  supposed  the  bargain  was  concluded,  as  he  soon  after  received  orders  from 
the  plaintiff  to  make  out  sale-notes  of  ten  hogsheads  to  the  defendant  at  63s. 
per  cwt.  These  sale-notes,  he  said,  contained  the  price  and  quantity  of  the 
sugar  sold,  and  that  one  of  them  was  usually  given  to  the  buyer,  and  the  other 
to  the  seller.  The  plaintiff,  he  said,  had  his  note  from  him,  and  the  defendant 
had  sent  for  his,  which  was  delivered  to  him  ;  soon  afterwards  the  defendant 
sent  back  part  of  the  sugar,  saying  that  he  had  contracted  for  new  sugars,  but 
that  these  were  old.  He  said,  that  at  the  time  of  the  sale  the  defendant  made 
no  inquiry  whether  the  sugars  were  new  or  old.  At  the  trial  the  counsel  for 
the  defendant  objected,  that  this  contract  was  within  the  statute  of  frauds  ;  and 
said,  that  the  broker  being  the  agent  of  Ritcker  the  plaintiff  only,  and  there  be- 
ing no  note  in  writing  on  the  part  of  the  defendant,  either  by  himself  or  any 
agent  authorised  by  him,  nor  proof  of  any  direct  and  immediate  contract  of  sale 
with  him  ;  that  it  therefore  was  void  under  the  statute  for  want  of  a  note  in 
writing. 

Lord  Kenyon  Ch.  J.  said,  "  That  it  was  of  great  importance  not  to  break 
in  on  any  decision  which  had  taken  place  on  the  statute  of  frauds,  and  cited 
the  case  of  Simon  v.  Motivos,  as  ruling  the  present  case.  He  said  that  the 
broker  must  be  considered  as  the  agent  of  both  parties,  and  need  not  be  con- 
stituted by  writing,  but  that  in  this  case  he  had  in  fact  given  the  defendant  a 
note  in  writing  when  he  gave  him  the  sale-note,  which  he  had  accepted."  (68) 

So,  in  the  case  of  a  sale  of  goods  by  public  auction,  the  auctioneer,  after 
knocking  down  the  hammer,  is  considered  as  agent  for  the  buyer,  and  his  set- 
ting down  the  name  of  the  buyer,  and  the  price,  &c.  in  writing,  *  is  sufficient 
to  satisfy  the  17th  clause  of  this  statute.  This  was  settled  in  the  case  of  Si- 
mon v.  Motivos;  (I)  the  defendant  bought  a  lot  for  more  than  10/.  at  an  auction; 
catalogues  and  conditions  of  the  sale  were  printed,  and  the  defendant  was  the 
best  bidder.  The  auctioneer  wrote  the  defendant's  name  and  the  price  against 
the  lot  in  the  printed  catalogue  by  the  order  and  assent  of  the  defendant.  Be- 
tween the  day  of  the  sale  and  the  time  for  taking  the  lot  away,  the  defendant 
sent  his  servant  to  see  them  weighed  ;  which  he  did.  The  defendant  neglect- 
ing to  take  away  the  goods,  they  were  resold  at  a  considerable  loss  ;  and  this 
action  was  brought  for  the  difference  :  and  the  Court  strongly  inclined  that  sales 
by  auction  were  not  within  the  statute  of  frauds,  because   multitudes   are  gen- 

(/)  3  Bur.  1921.   1  Bl.  Rep.  599.  S.  C.  But      v.  Metivier.     I  have  therefore  taken  the  re- 
this  case  is  said  to  be  more  accurately  report-      port  of  it  from  that  book. 
ed  in  Bui.  N.  P.  280.,    by  the  name  of  Simon 

(68)  As  a  broker  is  to  be  considered  as  the  agent  of  both  parties,  his  neglect  to  give  a 
copy  of  the  memorandum  of  a  contract  for  the  sale  of  goods,  to  the  vendee,  will  not  affect 
the  rights  of  the  vendor.  Merrill  v.  Clason,  12  J.  R.  102.  A  memorandum  of  a  contract  for 
the  purchase  of  goods,  written  by  the  broker  employed  to  make  the  purchase,  with  a  pencil, 
in  his  memorandum  book,  in  the  presence  of  the  vendor,  in  which  the  names  of  the  vendor 
and  vendee,  and  the  terms  of  the  sale  were  inserted,  but  which  was  not  signed  by  the  par- 
ties, is  a  sufficient  memorandum  in  writing  within  the  meaning  of  the  statute.  Merrill  v. 
Claton,  ut  supra.  S.  C.  14  J.  R.  4S4,  in  Error. 
*100 


Chap.  1.]         Contracts  for  the  Sale  of  Goods.  100 

erally  present  who  can  testify  the  terms  of  the  contract.  2dly,  They  held  the 
contract  was  here  sufficiently  reduced  into  writing,  and  signed  by  an  agent  of 
the  defendant's  ;  for  the  auctioneer  for  that  purpose  was  his  agent.  3dly,  They 
held  the  weighing  by  his  servant  was  a  delivery.  4thly,  Yates  Just,  held, 
that  as  the  contract  was  executory,  viz.  the  lot  to  be  fetched  away  in  six  weeks, 
that  therefore  it  wasr  not  within  the  statute. 

So,  in  the  case  of  Hinde  v.  Wkitehouse  and  Galan,  (m)  which  was  an  ac- 
tion of  assumpsit  to  recover  the  price  of  sugars  sold  by  auction  to  the  defen- 
dants. At  the  time  of  the  sale  the  auctioneer's  printed  catalogue  lay  on  the 
desk  before  him,  and  he  wrote  down  in  the  same  line  with  the  lot  purchased, 
the  name  of  the  highest  bidder,  or  purchaser,  and  the  price  bid  per  cwt.,  thus  : 

Lot  Mark  Hhds.  Gross  Wt. 

~    „  ,  ™      r,      ,o      wi      ^  Wkitehouse 

23  R.  H.  12  169     3     13     74,.  J  and   ^^ 

Whitehouse 
and   Galan. 


27  15  207     a     13     74s.  \ 


An  objection  was  taken  at  the  trial,  that  there  was  no  legal  evidence  sufficient 
to  fix  the  defendants  with  the  purchase  of  these  goods  within  the  statute  of 
frauds  ;  there  being  no  memorandum  in  writing  of  the  contract  signed  by  the 
parties  or  their  authorised  agent.    That  the  auctioneer  was  no  authorised  agent 
of  the  vendees  ;  but  that  supposing  he  were  so,  the   whole  contract  must  ap- 
pear upon  the  paper  signed  by  him  with  the  names  of  the  defendants,  whereas 
the  conditions  of  sale,  which  formed  an  essential  part  of  the  contract,  were  not 
so  siimed,  nor  in  any  ways  connected  except  by  parol   testimony,   which  was 
inoperative  by  the  statute,  with  the  catalogues  signed  :   and  that  the  delivery  of 
the  samples  was  diverso  intuitu,  and  not  as   part  of  the  goods  contracted  for. 
*The  learned  judge(/i)  over-ruled  the   objection,  but  reserved  the  point  for   the 
opinion  of  the    Court  of  King's   Bench;  and    a  verdict   was   found  for   1110/. 
And  after  the  case  had  been  fully  argued  at  the  bar,   and  the  Court  had   taken 
time  to  consider,  Lord  Ellenborough  Ch.  J.,  in   delivering  the   opinion  of  the 
Court,  said,  "  Is  the  writing  which  has  been  put  upon  the  catalogue  of  sale  by 
the  auctioneer  '  a  note  or  memorandum  in  writing  of  the  bargain  made  and  sign- 
ed by  the  parties  to  be  charged  by  the  contract,  or  their  agents   thereunto  law- 
fully authorised,"1  within  the  meaning  of  the  statute  1     It  has  been  said  that  sales 
by  auction  are  not  within  the  statute  ;  and  the  case  of  Simon  v.   Motivos,  re- 
ported in  3  Burr.  1921.  and  1  Blac.  Rep.   599.,   has  been  relied  on.     The  re- 
port in  Burrow  does  not  distinctly  mention  this  latter  point.     But  in  the  report 
of  Sir   W.  Blackstonc,   Lord    Mansfield,  speaking  of  sales  by  auction,   says, 
4  The  solemnity  of  that  kind  of  sale  precludes  all  perjury  as  to  the  fact  itself  of 
sale.'     He  then  mentions  the  case  of  a  sale  of  sugars  by  auction,   which   were 
•  afterwards  consumed  by  fire  in  the  auction  warehouse,  and  where  the  loss  fell 
upon  the  buyer.'     He   afterwards   adds,  '  According  to  the   inclination   of  my 


(m)  7  East,  558.  (n)  Rooke. 

#101 


101  Of  the  Statute  of  Frauds  upon  [Part  II. 

present  opinion,  auctions  in  general  are  not  within  the  statute.'  And  Mr.  Jus- 
tice Wilmot  says,  that  he  '  inclined  to  think  that  sales  by  auction,  openly  trans- 
acted before  500  people,  are  not  within  the  statute.'  With  all  deference  to 
these  opinions,  I  do  not  at  present  feel  any  sufficient  reason  for  dispensing  with 
the  express  requisition  of  a  memorandum  in  writing  in  a  statute  applying  to  all 
sales  of  goods  above  the  value  of  10Z.  without  exception,  merely  because  the 
quantum  of  parol  evidence  in  the  case  of  an  auction  is  likely  to  render  the  dan- 
ger of  perjury  less  considerable.  That  argument  in  a  degree  applies  to  all  sales 
in  market  overt ;  and  if  we  once  get  loose  from  the  positive  words  of  the  stat- 
ute, it  will  become  a  question  only  of  the  quantum  and  degree  of  danger  of  per- 
jury in  each  particular  instance  ;  which  opens  the  door  to  an  indefiniteness  of 
construction  founded  on  all  the  varying  circumstances  of  the  time  and  frequency 
of  persons  attending  the  places  of  sale,  and  the  like ;  which  would  be  destruc- 
tive of  all  certainty  of  practice,  and  render  the  rule  of  the  statute  perhaps  more 
mischievous  than  beneficial  to  the  trading  world  who  are  to  be  governed  by  it. 
I  am  not,  therefore,  prepared  to  say  that  sales  by  auction  are  not  meant  to  be 
comprehended  within  the  statute.  Nor  would  I  be  understood  as  giving  any  con- 
clusive opinion  to  the  contrary ;  neither  is  it  necessary  that  I  should  upon 
the  present  occasion.  The  question  on  the  letter  of  the  statute  is,  Is  this  a 
memorandum  of  the  bargain  made  by  an  agent  of  both  parties  1  In  respect  to 
sales  of  goods,  it  has  been  uniformly  so  holden  ever  since  the  case  of  Simon 
v.  Motivos;  and  it  would  be  dangerous  to  break  in  upon  a  rule  which  affects 
all  sales  made  by  *  brokers  acting  between  the  parties  buying  and  selling,  and 
where  the  memorandum  in  the  broker's  book,  and  the  bought  and  sold  notes 
transcribed  therefrom,  and  delivered  to  the  buyers  and  sellers  respectively,  have 
been  holden  a  sufficient  compliance  with  the  statute  to  render  the  contract  of 
sale  binding  on  each.  All  the  great  transactions  of  sale  in  this  great  city  are  so 
conducted,  and  stand  on  this  foundation  of  legality  only ;  and  it  is  too  late,  I 
conceive,  to  draw  it  into  question.  Supposing  the  auctioneer  or  broker  for 
sale  to  be  the  agent  of  both  parties,  the  question  then  is,  Has  he  made  a  mem- 
orandum of  the  bargain  in  this  case  ?  and  it  appears  to  me  that  he  has  not. 
The  minute  made  on  the  catalogue  of  sale,  which  is  not  annexed  to  the  condi- 
tions of  sale,  nor  has  any  internal  reference  thereto,  by  context  or  the  like,  is  a 
mere  memorandum  of  the  name  of  a  person,  whom  perhaps  we  may  intend  to 
be  the  purchaser,  and  of  the  quantity  and  price  of  the  goods,  which  we  may, 
perhaps,  on  the  foot  of  such  memorandum  also  intend  to  have  been  sold  to  the 
person  so  named  in  the  catalogue.  But  in  treating  it  as  such  memorandum 
throughout,  we  must  intend  also  (contrary  to  the  fact)  that  the  goods  were  sold 
for  ready  money,  and  unattended  by  the  circumstances  specified  in  the  condi- 
tions of  sale.  And  the  conditions  of  sale,  though  as  unsigned  they  cannot  be 
evidence  of  the  bargain  itself,  are  yet  capable  of  being  given  in  evidence  ;  and 
accordingly  have  been  so,  as  a  part  of  the  transactions  between  the  parties, 
and  in  order  to  show  that  it  was  on  those  conditions  that  the  goods  were  sold. 
I  am  of  opinion,  therefore,  that  the  mere  writing  on  the  catalogue,  not  being 
*102 


Chap.  1.]         Contracts  for  the  Sale  of  Goods.  102 

by  any  reference  incorporated  with  the  conditions  of  sale,  is  not  a  memorandum 
'  of  a  bargain  under  those  conditions  of  sale." 

Some  of  the  judges  on  the  bench,  conceiving  that  the  Lord  Chief  Justice  had 
questioned  generally  the  authority  of  the  case  of  Simon  v.  Motivos,  desired  to 
have  it  understood,  that  they  concurred  in  the  judgment  delivered  in  this  case, 
on  the  ground  that  a  part-delivery  of  the  thing  bought  (which  they  considered 
the  delivery  to  and  acceptance  of  the  samples  by  the  buyer  to  be  in  this  case) 
took  the  case  out  of  the  statute ;  leaving  the  authority  of  that  case  to  stand  as 
it  did  before  on  its  own  ground,  untouched  and  unsanctioned  by  the  present 
decision.  But  the  Lord  Chief  Justice  declared,  "  that  the  only  part  of  that  case 
which  he  meant  to  question,  though  it  was  unnecessary  at  present  to  decide 
upon  it,  was  the  opinion  thrown  out  that  auctions  were  not  within  the  statute, 
of  which  he  should  reserve  his  approbation  for  future  consideration.  But  as 
to  the  other  point  there  decided,  that  supposing  sales  by  auctioneers  or  brokers 
to  be  within  the  17th  section  of  the  statute,  the  auctioneer  or  broker  must  be 
taken  to  be  the  agent  of  both  parties,  the  practice  had  become  so  settled,  since 
the  decision  of  that  case,  that  it  would  be  dangerous  to  shake  it,  and  it  was  not 
his  intention  to  question  it." 

*And  it  is  now  settled,  (o)  that  the  auctioneer  is  considered  as  the  agent  for 
both  the  contracting  parties,  whether  it  be  of  lands  or  goods ;  though  it  was 
once  held  by  Eyre  Ch.  J.,  (p)  that  an  auctioneer  was  not  agent  for  both  parties 
in  the  case  of  a  sale  of  lands  under  the  4th  section  of  the  statute.  If,  therefore, 
the  highest  bidder  at  an  auction  be  an  agent,  and  his  name  be  written  down  by 
the  auctioneer,  his  principal  will  be  bound. (q)  (69)  But  an  auctioneer's 
clerk  cannot,  without  a  special  authority,  act  as  agent  for  his  employers  so  as 
to  satisfy  the  words  of  the  statute. (r) 

3.  OF  BOUGHT  AND  SOLD  NOTES  BY  BROKERS. 

A  great  part  of  the  trade  and  commerce  of  the  city  of  London  and  other  great 
trading  capitals  in  this  country,  is  carried  on  through  the  intervention  of  brokers, 
who,  when  they  sell  or  make  purchases  for  their  principals,  enter  their  contracts 
into  a  book  kept  for  that  purpose,  and  from  which  they  make  out  what  is  term- 
ed a  bought  and  sold  note,  and  sign  the  same  respectively  ;  one  of  which  is  de- 
livered to  the  buyer,  and  the  other  to  the  seller ;  and  such  broker,  as  we  have 
before  seen,  (s)  is  deemed  the  agent  of  both  the  contracting  parties.  Upon  the 
subject  of  these  sale-notes,  it  has  been  made  a  question  in  courts  of  law,  which 


(o)  Emmerson  v.   Heclis,  2  Taunt.  38.  (r)  Vide  Coles  v.  Trecothick,  9  Ves.  234. 

\p)  Stansfield  v.  Johnson,  1  Esp.  101.  (s)    Ante,  99. 

(q)   White  v.  Proctor,  4  Taunt.  209. 

(69)  See  Brown  v.  Gilliland,  3  Des.  540.  The  meaning  of  the  rule,  that  a  memorandum 
of  the  sale  of  goods,  made  by  an  agent  having  merely  a  parol  authority,  will  satisfy  the  stat- 
ute  of  frauds,  is,  that  the  agent  should  be  an  auctioneer,  or  broker,  or  other  agent  of  both 
parties  ;  not  a  mere  agent  of  the  vendee,  or  the  agent  of  either  party  singly  :  as,  for  example, 
a  commission  merchant  abroad.     Sewall  v.  Fitch,  8  Cowen,  215. 

#103 


103 


Of  Sales  by  Brokers,  fyc. 


[Part  II. 


of  the  contract  notes  is  to  be  deemed  the  original ;  viz.  whether  the  entry  made 
in  the  broker's  book,  or  the  bought  and  sold  notes  delivered  to  the  parties,  which 
indeed  ought  to  be  a  transcript  or  copy  of  the  entry.  In  the  case  of  Heyman 
v.  Neale,(l)  Lord  Ellc?iborough  Ch.  J.  said,  "After  the  broker  has  entered  the 
contract  in  his  book,  I  am  of  opinion  that  neither  party  can  recede  from  it.  The 
bought  and  sold  note  is  not  sent  on  approbation,  nor  does  it  constitute  the  con- 
tract. The  entry  made  and  signed  by  the  broker,  who  is  the  agent  of  both  par- 
ties, is  alone  the  binding  contract.  What  is  called  the  bought  and  sold  note  is 
only  a  copy  of  the  other,  which  would  be  valid  and  binding,  although  no  bought 
or  sold  note  was  ever  sent  to  the  vendor  or  purchaser.  The  defendant  is  equal- 
ly liable  in  this  case,  as  if  he  had  signed  the  entry  in  the  broker's  book  with  his 
own  hand.''(69.a.J 

But  in  the  case  of  Cummingv.  Roebuck, (u)  the  late  Chief  Justice  Gibbsheld, 
"  that  if  the  broker  deliver  a  different  note  of  the  contract  to  each  of  the  con- 
tracting parties,  there  is  no  valid  contract."  And  his  lordship  said,  "  There  is, 
I  believe,  a  case  which  states  the  entry  in  the  broker's  book  to  be  the  original 
contract ;  but  it  has  been  since  contradicted.  Each  is  bound  by  the  note  which 
the  broker  delivers ;  and  if  different  notes  are  given  to  the  parties,  neither  can 
understand  the  other." 

*  And  in  conformity  to  this  opinion,  the  Court  of  Common  Pleas,  in  the  case 
of  Thornton  v.  Kempster,(v)  determined,  that  a  variance  between  two  sale-notes 
in  a  material  point,  as,  for  instance,  in  describing  in  one  of  the  notes  delivered 
the  quality  of  the  goods  to  be  "  Riga  Rhine  hemp,"  and  in  the  other  "  St.  Peters- 
burgh  clean  hemp,"  the  latter'  being  the  article  really  bought,  is  fatal,  and  can- 
not be  enforced  by  action  against  either  party.  And  Gibbs  Ch.  J.  said,  "  A  con- 
tract must  be  perfect  in  order  to  be  binding  ;  that  is,  there  must  be  a  contract 
on  the  one  side  to  accept,  and  on  the  other  to  deliver  the  same  thing.  You  can- 
not say  that  one  party  is  bound  to  accept  what  the  other  party  is  not  bound  to 
deliver.  Here  the  defendant  was  bound  to  accept  one  species  of  hemp,  and  the 
plaintiffs  were  bound  to  deliver  another  species ;  These  cannot  together  make 
up  one  contract.  It  is  an  unfortunate  case  for  the  plaintiffs,  but  the  objection 
cannot  be  got  over." 

So,  if  a  material  alteration  in  a  sale-note  is  made  by  the  broker  after  the  bar- 
gain is  concluded,  at  the  instance  of  either  party  without  the  consent  of  the 
other,  the  contract  is  void  as  against  the  non-assenting  party,  upon  the  ground 
of  fraud,  (w)  But  a  mere  mistake  in  the  sale-note  of  the  description  of  the  names 
of  the  principals,  does  not  avoid  the  contract,  unless  either  party  can  show,  that 
by  such  mistake  he  has  been  really  prejudiced,  or  sustained  any  inconvenience, 
or  been  excluded  from  making  a  set-off.  (x) 


(t)  2  Campb.  337. 

(u)  Holt  N.  P.  Cas.  173. 

(«)   1  Marsh.  Rep.  355.,  and  5  Taunt.  786. 


But  sec  1  Stark.  140. 

(w)  Powell  v.  Divett,  15  East  Rep.  29. 
(x)  Mitchell  v.  Lapage,  Holt  N.  P.  C.  25fc. 


(69  a.)  See  ante,  note  (66). 
*104 


Chap.  1.]  Of  Sales  by  Brokers,   fyc.  104 

If  upon  a  sale,  the  broker  exhibits  a  sample,  and  represents  that  the  bulk  is 
equal  in  quality,  and  omits  to  insert  in  the  sale-note  this  representation  or  war- 
ranty, no  parol  evidence  can  be  admitted  to  incorporate  it  into  the  contract,  upon 
the  general  principle,  that  parol  evidence  is  inadmissible  to  contradict  a  written 
document,  (y) 

It  may  be  observed,  that  the  authority  of  the  broker  may  be  countermanded 
at  any  time  before  he  has  entered  and  signed  the  contract  of  sale.  Thus,  in 
the  case  of  Farmer  v.  Robinso?i,(z)  which  was  an  action  for  not  delivering  a 
quantity  of  brimstone.  The  defendant  had  authorised  a  broker  to  sell  some 
brimstone  for  him  at  a  certain  price,  and  the  broker  had  accordingly  agreed  to 
sell  it  to  the  plaintiff  at  that  price ;  but  before  the  sale-note  was  made  out,  the 
defendant  countermanded  the  authority  of  the  broker,  and  said  that  the  plain- 
tiff should  not  have  the  goods.  Lord  Ellcnborough  held,  that  under  these  cir- 
cumstances the  contract  could  not  be  enforced. 

In  the  Irish  provision  trade  it  was  proved,  in  the  case  of  Dicki?ison  v.  Lil- 
ival,(a)  that  according  to  the  established  practice  and  usage  of  the  trade,  the  au- 
thority of  the  broker  (as  between  himself  and  his  principal)  to  sell  expires  with 
the  day  on  which  the  authority  is  given,  unless  it  be  extended  by  some  special 
authority  to  a  future  day  ;  and  that  it  had  been  the  usual  course  for  the  broker 
to  apply  for  a  renewed  authority  from  his  principal  every  morning.  In  this 
case,  the  broker  had  authority  from  his  principal  on  the  30th  June,  to  sell  a 
quantity  of  Irish  butter  ;  but  not  having  sold  it  on  that  day,  he,  without  any  fur- 
ther authority,  sold  the  butter  on  a  subsequent  day  ;  the  principal,  however, 
dissented  to  the  contract,  and  refused  to  complete  it ;  and  upon  the  sale-note 
being  presented  to  him,  he  took  the  note  and  tore  it.  Lord  Ellenborough  Ch. 
J.  ruled,  on  proof  of  the  custom,  that  the  contract  could  not  be  enforced,  and 
directed  the  plaintiff  to  be  nonsuited. 

4.  OF  ABSOLUTE  AND  CONDITIONAL  SALES  ;  AND  OF  PARTICULAR 
STIPULATIONS  ANNEXED  TO  CONTRACTS  OF  SALE. 

If  several  distinct  parcels  of  goods  are  bought  under  one  contract,  and  with- 
out any  particular  stipulation  or  condition  annexed  as  to  the  delivery,  it  is  an 
absolute  and  entire  contract,  so  that  the  buyer  is  not  bound  to  accept  a  part  on- 
ly, but  may  insist  on  a  delivery  of  the  whole.  If,  however,  he  accepts  one  par- 
cel, he  cannot  legally  refuse  to  accept  the  rest.  Thus,  in  the  case  of  Champion 
v.  Short, (b)  where  a  person  gave  an  order  for  three  different  articles,  viz.  half 
a  chest  of  French  plums,  two  hogsheads  of  raw  sugar,  and  100  lumps  of  white 
sugar,  to  be  all  sent  without  delay  ;  the  two  first  articles  were  sent  without  de- 
lay, and  which  were  accepted ;  the  third  was  afterwards  sent,  but  the  buyer  re- 
fused to  receive  it,  having  previously  countermanded  the  order  as  to  that  arti- 
cle. But  Lord  Ellenborough  Ch.  J.  held,  that  the  defendant  was  liable.  And 
his  lordship  observed,  "  Where  several  articles  are  ordered  at  the  same  time, 


(i/)  Meyer  v.  Everth,  4  Campb.  22.  (a)   1  Stark.  130. 

(*)  2  Campb.  339.  in  notis.  (b)   1  Campb.  53. 

14  •105 


105       Of  Absolute  and  Conditional  Contracts.     [Part  II. 

it  does  not  follow,  although  there  be  a  separate  price  fixed  for  each,  that  they 
do  not  form  one  gross  contract.  I  may  wish  to  have  articles  A.  B.  C.  and  D. 
all  of  different  sorts  and  different  values  ;  but  without  having  every  one  of  them 
as  I  direct,  the  rest  may  be  useless  to  me  ;  I  therefore  bargain  for  them  jointly. 
Here,  had  the  defendant  given  notice  that  he  would  accept  neither  the  plums 
nor  the  raw  sugar,  as  without  the  white  sugar  they  did  not  form  a  proper  as- 
sortment of  goods  for  his  shop,  he  might  not  have  been  liable  in  the  present  ac- 
tion ;  but  he  has  completely  rebutted  the  presumption  of  a  joint  contract,  includ- 
ing all  the  articles  ordered,  by  accepting  the  plums  and  tendering  payment  for 
them ;  therefore,  if  the  raw  sugar  was  of  the  quality  agreed  on,  and  was  deliv- 
ered in  reasonable  time,  he  is  liable  to  the  plaintiff  for  the  price  of  it." 

*So,  in  Barker  v.  Sutton,{c)  where  the  plaintiff,  having  sold  60  coombs  of  rye 
to  the  defendant,  to  be  delivered  before  Michaelmas,  and  having  delivered  50 
coombs,  brought  his  action  for  the  amount  of  that  parcel ;  and  it  was  resolved  by 
Hale  Ch.  B.,  "  that  though  the  agreement  was  entire,  the  several  deliveries  made 
several  contracts  ;  and  that  though  the  payment  was  to  be  on  the  last  delivery, 
yet,  a  time  being  set  for  delivery,  it  was  intended  to  be  paid  when  the  delivery 
should  ha^e  been  ;  and  that  the  defendant  must  resort  to  his  remedy  as  to  the 
delivery  of  the  residue." 

And  where  an  agreement  is  made  for  the  sale  of  goods  upon  this  condition, 
viz.  if  he  like  or  dislike  them  upon  view     if  upon  his  first  seeing  them,  he  has 
agreed  or  disagreed,  approved  or  disapproved  of  the  goods,  the  bargain  is  then 
complete  or  void,  though  he  afterwards  disagree  or  agree  to  the  contrary,  (d) 
But  if  the  condition  be,  if  he  like  or  dislike  the  goods  at  such  a  day  ;  if  he  de- 
clare his  liking  or  dislike  before  the  day,  he  may    alter  it  at   the  day.  (e)     So, 
if  cattle  or  goods  are  sold  and  delivered  upon  a  contract  that  the  vendee  6hall 
use  them  a  certain  time  on  trial,  the  vendee  may  retain   them  the   whole  time 
allowed,   even   though  he  should  have  expressed  his  dislike  to  them  long  pre- 
vious to  the  expiration  of  the  period  allowed  for  trial.     Thus,  in  the  case  of  El- 
lis v.  Mortimer,  (f)  which  was   an  action  to  recover  the  sum  of  thirty  guineas, 
as  the  price  of  a  horse  sold  by  the  plaintiff  to  the  defendant.     At  the  trial  it  ap- 
peared,  that  the  plaintiff  having   a  horse  to  sell,  offered  him  to  the  defendant, 
and  it  was  agreed  that  the  defendant  should  give  thirty  guineas  for  the  horse  if 
he  liked  him,  and  should  take  him  a  month  upon  trial ;  that  the   defendant  hav- 
ing accordingly  taken  the    horse,  and   kept  him  for   about  a  fortnight,  told  the 
plaintiff,  upon  being  asked  how  he  liked  the   horse,  that  he  liked   the  horse 
but  not  the  price  ;  upon  which  the  plaintiff  desired,  that  if  the  defendant  did  not 
like  the  price,  he  would  return  the  horse  ;  that  the  defendant  after  this  kept  the 
horse  ten  days,  and  then  sent  him  back,  the  month  originally  agreed  upon  for  trial 
not  being  expired;  but  that  the  plaintiff  refused  to  receive  him.    The  Court,  after 

(c)   Trials  Per  Pais,  369.,  and  Gill).  Law     22.     See  also  Com.  Dig.  tit.  Agreements, 
l&vid.  131.    1  Campb.  55.  in  noh.;.  A.  4. 

(</)  Bro.  Contract,  27.  1  Rol.    Abr.  449.  1.         (<■)  1  Roll.  Abr.  449. 1.  25. 

(/)    1  New  Rep.  C.  B.  257. 
*106 


Chap.  I.]     Of  Absolute  and  Conditional  Contracts.      106 

argument,  determined  that  the  action  could  not  he  supported.  And  Mansfield  Ch. 
J.  said,  "  This  action  is  founded  on  a  contract ;  not  upon  the  unjust  detention 
after  the  conversation  between  the  parties.  The  first  question  then  is,  what  was 
the  contract  ?  It  was  agreed  that  the  horse  should  be  sold  for  thirty  guineas,  but 
that  the  defendant  should  have  a  month's  trial,  and  should  be  at  liberty  to  re- 
turn him  at  the  end  of  the  month  if  he  didnot  like  him.  If,  indeed,  the  defen- 
dant had  made  up  his  mind  not  to  buy  the  horse,  at  the  time  *when  the  conver- 
sation took  place,  it  was  a  very  unhandsome  thing  to  keep  him  to  the  end  of  the 
month.  But  still  that  was  the  contract.  The  effect  of  the  contract  seems  to 
me  to  be,  that  the  defendant  shall  have  to  the  end  of  the  month  to  judge  whe- 
ther he  likes  the  horse  at  the  price." 

So,  where  goods  are  sold  on  condition  that  the  quality  be  approved  on  a 
particular  day  ;  if  on  that  day,  the  buyer  neither  renounces  the  contract  or 
gives  notice  of  approval  thereof,  the  sale  becomes  absolute  on  that  day,  and 
binding  on  both  parties.  Thus,  in  the  case  of  Humphries  v.  Carvalho,{f) 
where  a  broker,  on  behalf  of  the  plaintiff,  agreed  to  purchase  the  five  casks 
of  ipecacuanha  of  the  defendant  for  the  plaintiff,  at  the  price  stated  on  Satur- 
day the  21st  of  December,  1811,  subject  to  the  plaintiff' 's  approval  of  the 
quality  on  the  Monday  following;  and  that  the  written  note  of  the  contract, 
(commonly  called  the  bought-notc,)  which  he  sent  to  the  plaintiff  on  the  Sat' 
urday,  had  these  words  on  the  face  of  it,  "  Quality  to  be  approved  on  Mon- 
day ;"  but  no  sold-note  was  sent  on  that  day  to  the  defendant,  because  the 
broker  having  met  him  on  the  same  day,  and  told  him  that  he  had  sold 
the  ipecacuanha  to  the  plaintiff  upon  the  terms  stated,  he  said  there  was  no 
occasion  to  send  him  a  written  note  :  the  broker  further  proved,  that  it  was  the 
custom  of  the  trade  for  either  party  to  return  the  contract,  if  he  disapproved 
of  it,  within  24  hours.  That  the  plaintiff  not  having  returned  the  contract,  nor 
signified  any  disapproval,  the  broker,  on  Friday  the  27th  of  December,  sent 
the  sold-note  to  the  defendant,  with  the  words,  "  quality  to  be  approved  on 
Monday,"  struck  out ;  but  tire  defendant  returned  it  again  immediately  to  the 
broker,  upon  which  the  broker  went  to  the  defendant  on  the  same  day,  and 
insisted  on  his  completing  the  contract ;  but  he  refused  to  do  so  on  account 
of  its  not  having  been  sent  to  him  on  the  Monday.  On  these  facts  Lord 
Ellcnborough  was  of  opinion  that  the  defendant  having  agreed  on  the  Sat- 
urday, to  the  actual  sale  of  the  commodity,  at  the  price  stated,  subject  to 
the  plaintiff's  approval  of  the  quality  on  the  Monday,  and  the  plaintiff  hav- 
ing accepted  the  contract  on  those  terms,  and  not  having  returned  it  on  the 
Monday,  which  was  to  be  taken  as  an  approval  by  him  of  the  contract,  both 
parties  were  bound  by  it :"  And  under  that  direction  the  Jury  found  a  verdict 
for  the    plaintiff. 

So,   if  goods  are  offered  for  sale  by  letter,  on  condition  that  an  answer  is 
sent  by  return  of  post ;  but  owing  to  some  mistake  in  the  direction  of  the  letter, 


If)   16  East  Ren.  45. 

#107 


107        Of  Absolute  and  Conditional  Contracts,     [Part  II. 

it  was  not  received  in  due  course,  though  the  answer,  accepting  the  offer,   was 
sent  on  the  same  day  the  letter  was  received  ;  but  before  it  arrived,  the  goods 
were  sold   to   another  ;  the   vendor  was   held  liable  in  damages  for  so  selling 
them.     Thus,  in  the  case  of  Adams  v.  Lindsell,(g)   where   the    defendant  by- 
letter  offered  to  sell  to  the  *plaintiff  certain  specified  goods,  on  receiving  an  an- 
swer by  return  of  post ;  but  owing  to  the   defendant's  misdirecting  the  letter, 
there  was  some  delay  before  it  reached   the  plaintiff;  consequently  his  answer, 
notifying  his  acceptance  of  the  defendant's  offer,  though  sent  by  the  first  post 
after  the  receipt  of  the  letter,  reached  the  defendant  two  days  later  than  he  ex- 
pected, and  he  had  in  the  mean  time  sold  the  goods  to  another  person.     But  the 
Court  determined,  that  the  contract  was  binding  upon  the  defendant,  and  that  he 
was  liable  in  damages    for  breach   thereof;  the   delay  having   arisen  from  his 
own    mistake.     But   in  the   case  of  Cook  v.   Ooclcy,  (A)  where  a  proposal  was 
made  between  A.   and   B.  for   the  purchase  of  266  hogsheads  of  tobacco  at  a 
certain  price  to  which  the  buyer  agreed,  but  desired  time  to  consider  of  the  pro- 
posal till  4  o'clock  in  the  afternoon  of  the  day  on  which  the  bargain  was  pro- 
posed, and  said  he  would  give  notice  thereof  to  the  seller  before  that  time  ;  the 
buyer  did  give  notice  before  the  time  allowed,  but  the  seller  refused  to  deliver 
the  tobacco  ;  and  the  Court  determined  that  he  was  not  bound  by  the  contract, 
because  there  was  no  consideration  to  bind  the  bargain. 

It  frequently  happens  that  particular  stipulations  are  annexed  to  contracts  of 
sale ;  asr  for  instance,  where  a  contract  was  made  for  the  purchase  of  300  tons 
of  Campeachy  logwood  upon  these  terms,  viz.  "to  be  of  real  merchantable  qual- 
ity ;  and  such  as  may  be  determined  to  be  otherwise  by  impartial  judges  to  be 
rejected."  The  Couit  held,  that  the  vendee  was  bound  to  accept  so  much  of 
the  300  tons  of  logwood  as  were  determined  to  be  of  real  merchantable  quali- 
ty, (i)  So,  where  goods  were  bought  at  an  auction,  and  one  of  the  conditions 
was  that  they  should  be  cleared  away  at  the  buyer's  expence  in  14  days  ;  but 
the  sale-note  given  to  the  buyer  expressed  14  days  for  receiving  and  delivery : 
it  was  held,  that  the  buyer  had  14  days  to  clear  and  take  away  the  goods  ;  but 
that  the  seller  was  bound  to  deliver  immediately,  and  was  not  entitled  to  14 
days  for  delivery,  (k) 

So,  in  contracts  for  the  sale  of  foreign  goods,  it  frequently  happens  that  par- 
ticular stipulations  are  introduced  touching  the  ship  or  consignment,  and  the 
shipment  of  the  goods.  Thus,  in  case  of  Hayioard  v.  Scougal,(l)  which  was 
an  action  for  breach  of  the  following  contract,  viz.  "  Sold  for  Messrs.  Scougal 
and  Co.  to  Messrs.  Hay  ward  and  Co.  all  the  sound  merchantable  Riga  Rhine 
hemp  that  may  be  loaded  by  the  Pilgrim,  Webster,  and  one  or  two  other  ships, 
not  exceeding  300  tons,  now  at  Riga,  by  the  supercargo  of  the  said  vessels,  or 
Messrs.  Schmids  and  Co.,  the  agents  of  the  concern  ;  the  names  of  the 
ships  to  be  given  up  when  received,  at  81/.  per  "ton,  &c."     The  names  of  two 

(g)  1  Barn.  &  Aid.  681.  (k)    Hagedorn  v.  Laing,  6  Taunt.   161.  1 

(/i)  3  Term  Rep.  653.  Mar.  514. 

(i)   Graham  v.  Jackson,    14  East  Rep.  498.  (I)  2  Campb.  56. 
•108 


Chap.  1. J  Of  Warranties  upon  Contracts.  108 

other  ships  were  subsequently  mentioned  pursuant  to  the  agreement  ;  *but  when 
they  arrived  along  with  the  Pilgrim,  it  appeared  that  although  Messrs.  Schmids 
had  loaded  each  of  them  with  a  full  cargo  of  hemp,  they  had  shipped  by  them 
not  more  than  71  tons  on  account  of  the  defendants.     This  quantity  was  deliv- 
ered   to  the  plaintiffs,  and   the  question  was,  whether  the  defendants  were    not 
bound  to  deliver   300  tons  ;  so  much  having    been   shipped  on  board  of  these 
vessels  by  Messrs.  Schmids  at  Riga.     It  appeared   that  these  gentlemen  were 
agents  for  various  other  Russia   merchants  besides  the  defendants.     Lord  El- 
lenborough  ruled,  that  the  contract  must  be  confined  to  such  hemp  as  had  been 
shipped  by  Schmid  and   Co.  as   agents   of  the  defendants,   who,  in  effect,    had 
said  by  the  contract,  "  We  will  sell  you  all  that  our  agents  at  Riga  ship  for  us 
to  the  amount  of  300  tons.     If  they  send  us  so  much,  you  shall  have  it ;  if  they 
send  us  none,  we  have  sold  none  to  you."     The  plaintiff  was  accordingly  non- 
suited. 

But  in  Splidt  v.  Heath,(m)    which  was  an  action   for  not  delivering  certain 
quantities  of  Petersburgh  hemp  sold  by   the   defendants  to   the  plaintiff,    to   be 
shipped  on  or  before  thej&lst  of  August  old  style,  by  ship  or   ships,  the   names 
of  which  were  to  be  given  up  when  known.     The  Wilberforce  and  the  Alfred 
were  afterwards  mentioned  as  the  names  of  the   ships  ;  but  they  arrived   with 
only  a  very  small  portion  of  the  hemp  on  board.     It  was  stated  by  way  of  de- 
fence, that  the  defendants  had  prepared   a   full  cargo   of  hemp   for  these  two 
ships,  which  would  have  been  much  more   than   sufficient    to   satisfy   the  con- 
tract ;  but  that  while  it  was  coming  down  in  lighters  from  Petfrsbur^h  to  Cron- 
stadt,  it  was  seized  by   the  Russian  government,    and   confiscated   as  British 
property  ;  and  that  the  ships  which  were  to  have  taken  it  on  board  were  oblig- 
ed to  cut  their  cables    and  put  to  sea,  to   avoid  the   embargo.     It  was  argued 
therefore,  that  the  defendants  were  not  liable  for  the  effects  of  the  confiscation 
and  embargo,  which  had  prevented  the  hemp  from  being  shipped  by  the  31st 
of  August.      But  Lord  Ellenborough  Ch.  J.  said,  "  This  case  was  decided  by 
Atkinson  v.  Ritchie,(n)  which  was   likewise  a  case  of  extreme   hardship  ;  and 
as  the    defendants  had   absolutely  engaged  that   the   hemp  should   be  shipped, 
they  were  liable  for  this  not  being    done,  from    whatever  cause    the   circum- 
stance had  arisen." 

5.  OF  WARRANTIES  BY    SAMPLE   AND   OTHERWISE  ;  AND  OF    DECEIT 

PRACTISED  BY  THE  SELLER. 

1.  Of  Warranties  by  Sample.]— It  frequently  happens  that  goods  are 
sold  by  sample,  which  is  considered  as  one  mode  of  warranty.  And  if,  upon  ex- 
amination, the  bulk  of  the  goods  sold,  is  found  not  to  correspond  with  the  sam- 
ple, the  buyer  is  not  bound  to  receive  them,  *even  though  it  may  be  usual  for  the 
purchaser  in  a  particular  trade,  to  take   the  goods   on  having  an  allowance 


(m)  2  Campb.  57.  n.  a.  („)  10  East,  530. 

*109  *110 


109  Of  Warranties  upon  Contracts,  [Part  II. 

made.  (70)     The  buyer  has  also  a  right  to  inspect  the  whole  bulk  with  the 
sample  at  proper  and  convenient  times  ;  and  if  the   seller   refuses  to  shew  the 
whole  quantity,  the  buyer  may  reject  the   contract   altogether.     Thus,  in   the 
case  of  Lorymerv.  S?nith,(a)  which  was  an  action  for  not  accepting  two  par- 
cels of  wheat  under  the  following  sale-note.     "  Bought  of  Ja?nes  Lorymer  700 
bushels  of  wheat,  1400  ditto,  ditto,  at  9s.  6d.  per  bushel,  according  to  samples. 
Banker's  bill  if  required."     By  the  usage    of  the  place,  the  buyer  had  a  right 
to  inspect   the   wheat  in   bulk.     And  on  the  19th  of  Scple?nber  the    defendant 
went  to     the   plaintiff's  warehouse  and  desired  to   see    the    wheat ;  the  parcel 
containing  700  bushels  was  shewn  to  him,  but    the    remaining    1400    bushels 
were  not  in  the  plaintiff's  warehouse.     The  plaintiff  offered   to  send   a  load  to 
the  defendant  for  his  inspection,  or  to  send  for    a  bushel    at    that  time,  but    de- 
clined shewing  the  whole  ;  saying  that  he  did  not  choose  to  let  defendant  into  his 
connexions.     The  latter  replied,  that   under  those  circumstances  he  would  not 
have  the  wheat.     The  Court  determined  that  the  plaintiff  had  put  an  end  to  the 
contract  by  refusing  to  shew  the   wheat  in  bulk  when  requested.     And  Abbott 
Ch.  J.  said,  "  It  appears    that,   by  the    usage  of  the  place,    the  buyer  had    a 
right  to  inspect  the  wheat  in  bulk,  which  is  so    reasonable,    that   without    any 
such  usage  the  law  would  give  him  that  right.   Here  on  the  19th  of  September, 
the  buyer  desired   to  see  the  whole  of  the  wheat  in  bulk,  but  the  seller  refused 
to  shew  it ;  upon  that  refusal  the  request  having    been  made  at  a  proper    and 
convenient  time,  the  buyer  was  entitled  to  rescind  the  contract.     If  this  were 
not  so,  a  man  might  bargain  to  deliver  corn  not  then  in  his  possession,  and  rely 
upon  making  a  future   purchase  in  time  to    fulfil  his  undertaking  ;  but  that  is  a 
mode  of  dealing  not  to  be  encouraged."     And  Holroyd,  Just,  said,  "  The  buy- 
er had  a  right  to  inspect  the  wheat  in  bulk  in  order  to  ascertain  whether  it  cor- 
responded with  the  sample,  and  might  have  insisted  upon  having  it  delivered 
immediatelv  upon  tendering  a  banker's  bill  for  the  price.     The  seller  not  being 
ready  to  complete  his  part  of  the  contract  on  the  19th  of  September,   when  he 
was  requested  to  shew  the  wheat,  cannot  afterwards  insist   upon  performance 

by  the  buyer." 

So,  in  Yates  v.  Pim,(b)  which  was  an  action  upon  a  warranty  ;  and  at  the 
trial  it  appeared,  that  on  the  29th  of  March  1815,  the  defendants  sold  to  the 
plaintiffs  50  bales  of  bacon,  warranted  to  be  (Penrose's)  prime  singed  bacon, 
at  GSs.  per  cwt.,  payable  by  a  bill  at  two  months,  from  the  landing,  average  for 
weight  ;  the  bacon  was  landed  a  few  days  after  the  contract.  On  the  31st  of 
March  one  of  the  plaintiffs   examined   a  bale,  and  upon  the  3d  of  April  three 


(a)   1  Barn.  &  Cres.  1.  (*)  6  Taunt.  445.  Holt  N.  P.  95. 


(70)  In  sales  of  packed  cotton,  the  doctrine  that  a  sample  amounts  to  a  warranty  of  the 
article,  applies  with  peculiar  propriety;  as  it  would  be  impracticable  to  examine  the  bales 
throughout.  Rose  *  Rogers  v.  Beattie,  2  Nott  &  M'Cord,  538,  540  54 1  The  On«daManu- 
facturing  Society  v.  Lawrence,  4  Cowcn,  440.  Andrews  v.  Kneeland,  6  Cowen,  354.  1  or  the 
application  of  the  above  mentioned  principle,  in  ordinary  sales,  see  the  cases  just  cited  ; 
and  also  Bradford  v.  Manly,  13  Mass.  Rep.  139.     Willing  v.  Consequa,  1  Petere  Rep.  317. 


Chap.  ].]  Of  Sale  of  Goods,  fyc  1 10 

more  bales  were  weighed  and  opened;  no  objection  was  taken,  and  no  allow- 
ance claimed ;  a  bill  was  *drawn  by  defendants  on  plaintiffs  for  the  price  of 
the  bacon,  which  was  accepted  and  duly  paid.  About  the  latter  end  of  May 
plaintiffs  made  a  final  examination  of  the  bacon,  and  rejected  it  on  account  of 
taint.  The  defendants  offered  evidence  to  prove,  that  there  was  a  custom  in 
the  trade,  upon  the  sale  of  bacon,  to  examine  it  a  few  days  after  the  landing  if 
it  was  not  imported  at  the  time  of  the  sale,  and  at  the  time  of  inspection  to  re- 
ject or  accept  it,  or  claim  an  allowance  for  damage  or  difference  of  quality  ; 
and  that  if  the  buyer  did  not  at  that  time  reject  the  contract,  or  claim 
an  allowance,  he  was  bound  to  accept  the  bacon  without  reference  to 
the  terms  of  the  contract ;  but  this  evidence  was  objected  to  on  the  part 
of  the  plaintiff.  And  Heath  Just,  said,  "  It  would  breed  endless  confu- 
sion in  the  contracts  of  mankind,  if  custom  were  of  any  avail  in  a  case 
like  the  present.  I  will  admit  evidence  to  shew  that  the  buyer  inspect- 
ed the  commodity,  and  made  no  objection  to  the  quality  ;  but  no  usage  in  a 
trade  can  deprive  a  man  of  the  benefit  of  an  express  contract ;  by  requiring  a 
warranty,  he  is  to  be  understood  as  excepting  against  all  terms  but  such  as  are 
stipulated  in  the  bargain.  It  is  open  to  the  defendants  to  prove  that  the  plain- 
tiffs acquiesced  ;  and  evidence  may  be  admitted  to  shew  that  they  were  guilty 
of  gross  negligence  in  not  examining  and  rejecting  the  bacon  in  time  ;  but  the 
evidence  of  custom  cannot  be  received  to  alter  the  contract."(71)  The  plaintiff 
accordingly  obtained  a  verdict ;  and  upon  a  motion  afterwards  made  to  set  it 
aside,  the  Court  of  Common  Pleas  confirmed  the  learned  Judge's  opinion,  and 
refused  the  rule. 

If,  however,  upon  the  examination  of  goods  they  do  not  correspond  with  the 
sample,  the  buyer  should  immediately  give  notice  thereof  to  the  seller  ;  and  if 
he  fail  doing  so,  and  keeps  the  goods,  and  treats  them  as  his  own  by  putting 
them  up  to  sale,  &c,  he  cannot  afterwards  reject  the  contract.  (72)  This 
point  was  determined  in  Parker  v.  Palmer,  (c)  which  was  an  action  for  not  ac- 
cepting goods  mentioned  in  the  following  sale-note,  "  Bought  by  order  and  for 
account  of  Mr.  A.  Palmer  of  Messrs.  Parker  and  Co.,  ex  Hadlow,  per  sample, 
1826  bags  of  East  India  rice,  at  135.  6d.  per  cwt.,  company's  conditions, 
prompt  three  months,  deposit  10Z.  per  cent,  to  be  put  up  at  the  next  East  India 
6ale  by  the  proprietors  if  required."  On  the  5th  of  June  1820,  the  rice  was 
put  up  for  sale  at  the  public  sale  of  the  East  India  Company,  by  the  defend- 
ant's orders ;  but  no  bidding  having  been  made  to  the  extent  of  the  limit  put 
upon  it  by  the  defendant,  it  was  bought  in  for  him,  in  the  name  of  the  plain- 
tiffs, for  the  purpose  of  avoiding  the  payment  of  an  auction   duty.     Upon  that 

(c)  4  Barn.  &  Aid.  387. 


(71)  See  Thompson  v.  Jlshton,  14  J.  R.  316. 

(72)  See  Wharton  v.  O'Hara,  2  Nott  &  M'Cord,  65. 

Mil 


Ill  Of  Warranties  upon  Contracts.  [Part  II. 

sale,  fresh  samples  were  drawn  and  exhibited,  and  these  samples  were    inferior 
in  quality  to  the  sample  exhibited  to   the  defendant  when  he   purchased.     The 
prompt   expired  on  the  15th  of  August;  and  on  the  14th  *of  August,    1S20, 
the  defendant  declined  accepting  the  rice  on  the  ground  that  it  did  not  corres- 
pond with  the  purchased   sample.     The  cause  was  tried  before  Abbott  Ch.  J., 
who  held  that  the  defendant  was  bound  to  give  notice  within  a  reasonable  time  ; 
and  he  left  it  to  the  Jury  upon  the  evidence  to  say,  whether  the  defendant  had 
rejected  the    rice  within  a  reasonable  time  :  They  found  that  he  had  not,  and 
gave  a  verdict  for  the  plaintiffs.     And  on  motion  to  set  it  aside,  the  court  refus- 
ed, and  determined  that  the  verdict  was  right.     And  his  lordship  on   that  occa- 
sion said,  "  I  stated  to  the  jury  that  although  the  declaration  did  not  allege  this 
to   be  a  sale  by  sample,  yet  it  was  a  good  defence  that  the  goods   sold  did  not 
correspond  with  the  sample,  unless  the  defendant  by  his  own  conduct  had  pre- 
cluded himself  from  taking  that  objection.     The  general  rule  undoubtedly  is,  in 
the  case  of  a  sale  by  sample,  that  the  purchaser  may  reject  the   commodity  if 
it  does  not  correspond  with  the  sample  ;  but  every   man  may   waive  a  rule  of 
law  which  is  in  his  own  favour.     Now  I  do    not  say  that  in  every  case  a  pur- 
chaser is  bound  to  examine  immediately  whether  the    goods    correspond    with 
the  sample  ;  but  I  am  of  opinion  that  by  suffering  the  rice  to    be  put  up    for 
sale  after  he  knew,  by  the  fresh  samples  drawn   from  the   bulk,  that  it  did  not 
correspond  with  the  original    purchase    sample,   and  by  fixing    a   price  below 
which  the  rice  was  not   to  be  sold,   and  thus  taking  his   chance  of  that   sale, 
the  defendant  did  in  fact  consent   and   agree,  that,  as  far  as  he  was  concerned, 
the  goods  should  be  considered  as  corresponding  with   the  sample.     And  Hol- 
royd  Just,   said,  "  I  am  of  opinion  that  the  defendant,    after  what  has  happen- 
ed, cannot  now   say  that  this  contract  is   wholly  void  on    the  ground  that  the 
goods  do  not  correspond  with  the   sample.     By  the  terms   of  the    contract,  he 
has  a  right  to  require  the  rice  to  be  put   up  for  sale  in  the  name  of  the  original 
proprietors.     The  samples  at  the  public  sale  were  inferior  to  the  original  pur. 
chase  sample.     The  defendant  saw  them,  and  he  then  had  a  right  to  annul  the 
contract  altogether.     He,  however,  does  not  do  that,  but  he  treats  the  goods  as 
if  they  actually  corresponded  with  the  sample.     Now  a  purchaser  may  perhaps 
suffer  less  inconvenience  by  taking  the  goods,  though  inferior  in   quality  to  the 
sample,  than  by  refusing  them  altogether ;  and  if  he  takes  them  under  those 
circumstances,  he  will  be  entitled  to   such  damage   as  he  may  sustain  by  their 
not  answering  the  description  in  the  contract.     The  defendant  treats   the  goods 
at  the  time  of  the  second  sale  as  if  they  were  his  own  property  ;  for  he  actu- 
ally attempts  to  dispose  of  them  as  such.     By  assuming  the  dominion  over  the 
property,   he  treats  the  first  sale  to   him  as  a  valid  sale,   and  he  cannot  after- 
wards insist  that  it  is  void." 

Where  the  seller  produces  a  sample  at  the  time  of  the    contract  of  sale,  and 
represents  that  the  bulk  is  equal  in  quality  ;  but  the  sale-note  does  not  mention 
any   thing    about   sample,    if   the    goods    turn    out    to   be    inferior  in    qual- 
•112  113* 


Chap.  l.J  Of  Sale  of  Goods,   &c.  113 

ity,  no  action  will  lie  upon  the  parol  warranty ;  it  being  contrary  to  the  written 
contract ;  and  the  buyer's   only  remedy  is  by   action  of  deceit,  (d)  (73) 

So,  in  Gardiner  v.  Gray,  (e)  which  was  an  action  for  not  delivering  a  parcel 
of  silk  equal  in  quality  to  a  sample  produced  at  the  time  of  sale  :  at  the  trial  it 
appeared,  that  the  silk  in  question  was  imported  from  the  continent ;  and  be- 
fore it  was  landed,  samples  of  it  which  the  defendant  had  received  in  a  letter, 
were  shown  to  the  plaintiffs  agent ;  and  the  bargain  was  then  made,  and  the 
sale-note  written  out,  which  merely  mentioned  that  12  bags  of  waste  silk  were 
sold  at  10s.  6d.  per  pound,  without  referring  to  the  samples,  or  specifying  par- 
ticularly the  qualitv  of  the  commodity.  The  silk  was  purchased  in  London,  and 
sent  down  to  the  defendant  at  Manchester  ;  on  it3  arrival  there  it  was  examin- 
ed, and  found  to  be  much  inferior  to  the  samples,  and  of  a  quality  not  saleable 
under  the  denomination  of  "  waste  silk."  Upon  this  evidence,  Lord  Ellenbo- 
rough  Ch.  J.  said,  "  The  written  contract  contains  no  stipulation  that  the  silk 
should  correspond  with  the  sample,  and  no  parol  evidence  can  be  received  to 
superadd  such  a  warranty.  This,  therefore,  was  not  a  sale  by  sample.  The 
sample  was  not  produced  as  a  warranty  that  the  bulk  corresponded  with  it,  but 
to  enable  the  purchaser  to  form  a  reasonable  judgment  of  the  commodity;  I  am 
of  opinion,  however,  that  under  such  circumstances  the  purchaser  has  a  right 
to  expect  a  saleable  article,  answering  the  description  in  the  contract.  With- 
out any  particular  warranty,  this  is  an  implied  term  in  every  such  contract. 
Where  there  is  no  opportunity  to  inspect  the  commodity,  the  maxim  of  caveat 
emptor  does  not  apply.  He  cannot  without  a  warranty  insist  that  it  shall  be  of 
any  particular  quality  or  fineness  ;  but  the  intention  of  both  parties  must  be  tak- 
en to  be  that  it  shall  be  saleable  in  the  market  under  the  denomination  men- 
tioned in  the  contract  between  them."  The  phiintiff  accordingly  obtained  a 
verdict. 

But  upon  a  sale  by  sample  with  a  warranty  that  the  bulk  answers  the  sam- 
ple, no  implied  warranty  can  be  raised  that  the  commodity  shall  be  merchanta- 
ble ;  and  the  seller  is  not  answerable  though  the  goods  turn  out  to  be  unmer- 
chantable :  but  if  the  sample  answers  fairly  to  the  commodity  in  bulk,  the  war- 
ranty is  satisfied.  (74)  Thus,  in  the  case  of  Parkinson  v.  Lee,  (f)  which 
was  an  action  of  assumpsit ;  first,  for  not  delivering  hops  according  to  sample  ; 
and  secondly,  that  the  hops  at  the  time  of  the  delivery  thereof  to  the  plaintiff, 
were  not  good,  sound,  and  merchantable  hops,  but  on  the  contrary,  were  bad,  dam- 
aged, and  unmerchantable.  At  the  trial  before  Lc  Blanc  J.  at  Guildhall,  it  ap- 
peared that  the  plaintiff  and  defendant  were  both  dealers    in  hops,  and  in  Janu- 


(d)  Meyer  v.  Everth,   4  Camp.  22.  (/)  2  East,  Rep.  314. 

(e)  4  Camb.  144. 


(73)  On  the  sale  of  a  ship,  the  parties  reduced  the  contract  to  writing  by  a  bill  of  sale  ;  it 
was  held,  that  an  action  could  not  be  maintained  on  a  parol  warranty  made  at  the  time  of 
the  sale,  no  fraud  being  alleged.  Mumford  v.  M'Pherson,  1  J.  R.  414.  See  Wilson  v.  Marsh, 
Id.  503.     Reed  v.  Van  'Ostrand,  1  Wend.  424.     Read  v.  Duncan,  2  M'Cord,  167. 

<74)  See  Sands  v.  Taylor,  5  J.  R.  395.     Swett  v.  Colgate,  20  J.  R.  196. 

15 


114  Of  Warranties  upon  Co?itracts  [Part  II. 

ary,  1800,  five  pockets  were  purchased  by  the  plaintiff  of  the  *defendant,  war- 
ranted to  answer  the  samples  by  which  they  were  sold.  They  were  not  how- 
ever removed  till  the  8th  of  July  from  the  defendant's  to  the  plaintiff's  ware- 
house. The  price  paid  was  16/.  5s.  per  hundred,  which  was  the  fair  market 
price  at  the  time  for  good  merchantable  hops.  Previous  to,  and  at  the  time  of 
the  sale,  the  samples  answered  fairly  to  the  commodity  in  bulk  ;  and  no  defect 
was  perceptible  at  that  time  to  the  buyer  :  but  owing  to  the  grower  of  the  hops 
having  fraudulently  watered  them  after  they  were  dried,  before  they  were 
originally  purchased  by  the  defendant,  (a  fraud  to  which  the  defendant  was 
not  privy,  and  of  which  he  was  wholly  ignorant  at  the  time  of  the  sale,)  it  was 
discovered  a  few  days  after  the  removal  of  them  to  the  plaintiffs  warehouse, 
that  one  of  the  pockets  was  so  much  heated  as  to  be  in  an  unsaleable  condi- 
tion ;  which  pocket  was  thereupon  immediately  returned  to  the  defendant,  who 
received  it  back,  and  allowed  for  it  in  settling  the  account  for  the  other  hops, 
which  was  done  on  the  18th  of  October  following.  In  the  intermediate  time, 
however,  it  was  found  that  the  other  four  pockets  were  in  the  same  unsaleable 
condition  from  the  same  cause;  but  owing  to  the  plaintiff  having  first  attempted 
to  maintain  an  a  ction  against  Clarke,  the  grower,  under  the  mistaken  supposition 
that  the  defendant  was  only  acting  as  his  agent,  (which  action  was  afterwards 
discontinued  on  finding  that  the  defendant  was  not  agent  but  vendee,)  the  pre- 
sent action  was  not  commenced  till  upwards  of  a  twelvemonth  after  the  transac- 
tion, and  after  a  refusal  by  the  defendant  to  allow  for  the  rest  of  the  pockets. 
It  appeared  further,  that  the  object  of  watering  hops  after  they  are  dried  is 
to  give  them  weight ;  but  the  effect  of  it  is,  after  some  months,  to  cause  them  to 
heat  and  corrupt  in  the  pockets  or  bags  into  which  they  are  packed,  till  at  last 
they  become  quite  unfit  for  sale.  This  effect  is  not  produced  on  the  sample, 
which  is  usually  taken  from  the  middle  of  the  bag,  by  means  of  its  exposure  to 
the  air.  It  is  impossible,  even  for  the  best  judges  of  the  commodities,  always 
to  detect  this  fraudulent  practice  for  some  time  afterwards,  by  any  inspection  of 
the  sample,  or  of  the  commodity  itself  in  bulk,  till  it  is  disclosed  by  the  gradual 
process  of  heating.  However,  by  the  latter  end  of  July,  1800,  the  effects 
of  it  were  apparent  in  all  the  pockets  ;  and  at  the  time  of  the  trial,  although 
the  samples  still  continued  as  at  first,  the  commodity  in  bulk  was  become  per- 
fectly   unmerchantable. 

Upon  this  evidence  the  learned  judge  left  it  to  the  jury  to  find  for  the 
defendant  on  the  first  count,  if  they  were  satisfied  that  the  commodity  agreed 
at  the  time  with  the  sample,  by  which  it  was  sold,  and  there  was  no  fraud  on 
his  part ;  notwithstanding  any  latent  defect  in  the  commodity  in  bulk  unknown 
to  the  parties,  by  which  it  became  afterwards  deteriorated.  But  he  instructed 
them,  that  if  they  were  satisfied  that  the  commodity,  at  the  time  of  the  sale,  had 
such  a  latent  defect  as  *no  prudence  or  «kill  of  the  buyer  could,  on  inspection, 

detect  or  guard  against,  the  plaintiff  Avas  entitled  to  recover  on  the  implied  war- 
ranty in  the  second  count,  although  the  seller  had  no  knowledge  of  such  latent 

defect ;  it  being  the   understanding  of  both   parties  to  such  a  contract,  though 
not  expressed  in  the  special  warranty,  that  the  one  was  to  sell,  and  the  other 

*1H  *115 


Chap.  1.]  Of  Sale  of  Goods,  &c.  115 

to  purchase  a  merchantable  commodity.  He  also  left  it  to  the  jury  to  consider 
whether  the  plaintiff*,  by  delaying  so  long  to  proceed  against  the  defendant,  had 
thereby  waved  his  remedy  against  him  ;  which  the  jury  answered  in  the  neg- 
ative ;  and  found  for  the  defendant  on  the  first  count,  as  the  commodity  answer- 
ed, in  fact,  to  the  sample  at  the  time  of  the  sale  without  fraud,  and  he  had 
then  no  knowledge  of  the  latent  defect  of  the  commodity.  The  jury  gave  a 
verdict  for  the  plaintiff'  on  the  second  count,  considering  that  there  was  an 
implied  warranty  in  the  seller  that  the  commodity  was  in  a  merchantable  state 
at  the  time  of  the  sale.  But  upon  a  rule  for  setting  aside  the  verdict  and 
having  a  new  trial,  the  Court,  after  argument,  determined  that  there  ought  to  be 
a  new  trial,  upon  the  ground  that  there  must  either  be  an  express  warranty,  or 
fraud  in  the  seller  in  order  to  maintain  such  an  action. 

Grose  Just,  said,  "  This  is  a  case  of  considerable  consequence  ;  because  the 
rule  laid  down  in  this  case  must  extend  to  all  other  cases  of  sales,  not  govern- 
ed by  particular  usages  of  mode  in  this  respect.     The  question  is,  whether  in 
the  case  of  a  sale  made  under  the  present  circumstances,  there  be  any  implied 
undertaking  in  law  that  the  commodity  be  merchantable  ?  No  express  undertak- 
ing is  proved  to   that  effect ;  and  there  is  no  fraud  imputed  to  the  defendant. 
The  mode  of  dealing  is,  that  the  plaintiff*  buys  hops  from  the  defendant,  whom 
he  knows  is  not  the  grower,  by  samples  taken  from  the  pockets  in  which  the 
commodity  is  close  packed.     He  has  an  opportunity  of  judging  by  the  samples 
such  as  he  finds  them  at  the  time.     If  he  doubt  the  goodness,  or  do  not  choose 
to  incur  any  risk  of  a  latent  defect,  he  may  refuse  to  purchase  without   a  war- 
ranty.    If  an  express  warranty  be  given,  the  seller  will  be  liable  for  any  latent 
defect,  according  to  the  old  law  concerning  warranty.     But  if  there  be  no  such 
warranty,  and  the   seller  sell   the  thing  such  as  he   believes  it  to  be,  without 
fraud,  I  do  not  know  that  the  law  will  imply  that  he  sold  it  on  any  other  terms 
than  what  passed  in  fact.     It  is  the  fault  of  the  buyer  that  he  did  not  insist  on 
a  warranty  ;  and  if  we  were  to  say  that  there  was,  notwithstanding,  an  implied 
warranty   arising  from  the  conditions  of  the  sale,  we  should  again  be  opening 
the  controversy,  which   existed  before  the  case  in  Douglas''    Rep.   20.     Before 
that  time  it  was  a  current  opinion,  that  a  sound  price  given  for  a  horse  was  tan- 
tamount to  a  warranty  of  soundness ;  but  when  that  came  to  be  sifted,  it  was 
found  to  be  so  loose  and  unsatisfactory  a  *ground  of  decision,  that  Lord  Mans- 
field rejected  it,  and  said,  there  must  be  either  an  express  warranty  of  sound- 
ness, or  fraud  in  the  seller,  in  order  to  maintain  the  action.     Here   neither  has 
been  shown  ;  the  defendant  merely  sold  what  he  had  before    bought  upon  the 
same  mode  of  examination.     Therefore  I  think  there  ought  to  be  a  new  trial." 
Lawrence  Just.  "  I  agree  that  there  is  no  ground  for  the  plaintiff"  to  recover. 
It  is  not  pretended  that  the  defendant  has  been  guilty  of  any  fraud  or  imposi- 
tion in  the  sale.     And  I  must  suppose  that  each  party  was   equally  well   ac- 
quainted with  the  commodity  bargained   for.     There  was  no    representation 
made  by  the  defendant  to  the  plaintiff*  as  to  the  goodness   of  the  hops,  to  induce 
him  to  make  the  purchase.     But  here  was  a   commodity  offered  to  sale,  which 
might  or  might  not  have  a  latent  defect  ;  this  was  well  known  in  the  trade ;  and 

*116 


116  Of  Warranties  upon  Contracts  [Part  II. 

the  plaintiff  might,  if  lie  pleased,  have  provided  against  the  risk,  by  requiring  a 
special  warranty.  Instead  of  which  a  sample  was  fairly  taken  from  the  bulk,  and 
he  exercised  his  own  judgment  upon  it ;  and  knowing  as  he  must  have  known, 
as  a  dealer  in  the  commodity,  that  it  was  subject  to  a  latent  defect  which  after- 
wards appeared,  he  bought  it  at  his  own  risk.  I  know  of  no  authority  which 
makes  the  seller  liable  for  a  latent  defect  where  there  is  no  fraud,  and  no  rep- 
resentation was  made  by  him  on  the  subject  to  induce  the  buyer  to  take  the 
thing.  (75)  In  1  Roll.  Abr.  90,  it  is  said,  that  if  a  merchant  sell  cloth  to  another 
knowing  it  to  be  badly  fulled,  an  action  on  the  case,  in  nature  of  deceit,  lies 
against  him,  because  it  is  warranty  in  law.  But  there  is  no  authority  stated,  to 
show  that  the  same  rule  holds  if  the  commodity  sold  have  a  latent  defect  not 
known  to  the  seller." 

2.  Of  express  and  implied  Warranties  of  Goods  otherwise  than 
by  Sample.] — Upon  all  contracts  of  sale  the  law  implies  a  warranty  that  the 
goods  sold  are  the  property  of  the  seller,  and  where  it  proves  otherwise,  and 
the  buyer  is  thereby  damnified,  an  action  will  lie  against  the  seller  without  an 
express  warranty.(o-)(76)      So,  where  a  man  sells  goods  to  another,  and  af- 


(g)  3  Bl.  Com.  166.  Doug.   18.  Cro.  Jac.  474.  197.  Carth.  90. 


(75)  In  the  sale  of  goods,  if  there  be  neither  fraud  nor  warranty,  the  maxim  caveat  emptor 
will  apply  ;  and  the  purchaser  can  maintain  no  action  against  the  vendor,  if  afterwards,  the 
goods  appear  to  have  been  defective  at  the  time  of  the  sale.  Seixas  v.  Woods,  2  Caines,  48. 
SnelL  v.  Moses,  1  J.  R.  96.  Perry  v.  Aaron,  Id.  129.  Defreeze  v.  Trumper,  Id.  274.  Holden 
v.  Dakin,  4  J.  R.  421.  Swett  v.  Colgate,  20  J.  R.  196.  Dean  v.  Mason,  4  Conn.  Rep.  428. 
Willing  v.  Consequa,  1  Peters'  Rep.  317.  Emersonx.  Brigham,  10  Mass.  Rep.  197.  Fleming 
v.  Slocum,  18  J.  R.  403.  Welsh  v.  Carter,  1  Wend.  185.  Wilson  v.  Shackleford,  4  Rand.  5. 
See  Sands  v.  Taylor,  5  J.  R.  395.  Cunningham  v.  Spier,  13  J.  R.  392.  It  has  been  decided, 
that  in  the  sale  of  provisions  for  domestic  use,  the  vendor  is  bound,  at  his  peril,  to  know  that 
they  are  sound  and  wholesome  ;  and  if  they  be  defective,  he  is  liable  to  damages,  at  the  suit 
of  the  vendee.  Van  Bracklin  v.  Fonda,  12  J.  R.  468.  But  see  Emerson  v.  Brigham,  ut  supra. 
In  North  and  South- Carolina,  the  rule  of  the  civil  law,  that  a  sound  price  implies  a  warranty 
of  the  soundness  of  the  commodity  sold,  has  been  adopted.  Missroon  <$-  Timmons  v.  Waldo 
$•  Freeman,  2  Nott  &  M'Cord,  76.  Rose  <$•  Rogers  v.  Beatlie,  Id.  538.  Colcock  v.  Goode,  3 
M'Cord,  513.  Jhhlcy  v.  Reeves,  2  M'Cord,  432.  Galbraith  x.  Whyte,  1  Hayw.  464.  White- 
field  v.  M'Leod,  2  Bay,  380.  The  same  rule  was  formerly  considered  to  be  law  in  Connecti- 
cut ;  but  by  a  recent  decision,  the  common  law  doctrine  has  been  established  in  this  State. 
See  Dean  v.  Mason,  ut  supra.  The  rule  of  the  common  law  on  this  subject,  is  adopted  in 
nearly  all  the  other  States  of  the  union. 

(76)  The  doctrine  of  implied  warranties,  by  the  common  law,  is  applicable  only  to  the 
title  of  the  vendor.  Defreeze  v.  Trumper,  1  J.  R.  274.  Heermance  v.  Vernoy,  6  J.  R.  5. 
Swett  v.  Colgate,  20  J.  R.  196.  Boyd  v.  Bopst,  2  Dall.  91.  Rew  v.  Barber,  3  Cowen,  272. 
"Warranties  of  the  soundness,  quality  or  condition  of  chattels,  must  be  express;  and  may  be 
created  by  parol.  No  particular  phraseology  is  requisite  to  constitute  a  warranty  ;  any  repre- 
sentation of  the  state  of  the  thing  sold,  or  any  direct  and  express  affirmation,  by  the  vendor, 
of  its  quality  and  condition,  shewing  an  intention  to  warrant  its  soundness,  will  be  sufficient. 
Chapman  v.  March,  19  J.  R.  290.  Roberts  v.  Morgan,  2  Cowen,  438.  Seixas  v.  Woods,  2 
Caines,  56.  Per  Kent,  J.  The  Oneida  Manufacturing  Soc.  v.  Laicrence,  4  Cowen,  440.  See 
Cramer  v.  Bradshaw,  10  J.  R.  484.  The  expression  of  an  opinion  merely,  by  the  vendor,  as 
to  the  soundness  or  condition  of  goods  sold,  will  not  amount  to  a  warranty  :  The  words 
used  must  shew  that  a  warranty  is  intended.  See  Swett  v.  Colgate,  ut  supra.  Per  Wood- 
worth,  J.  The  Oneida  Man.  Soc.  v.  Lawrence,  ut  supra.  Per  Savage,  Ch.  J.  It  is  within  the 
province  of  the  jury  to  determine  whether  the  words  used,  amount  to  a  warranty ;  especially, 
where  they  have  no  technical  meaning.     Duffee  v.  Mason,  8  Cowen,  25. 

But,  it  seems,  an  express  warranty  will  not  extend  to  visible  defects :  The  defendant,  on 
the  sale  of  a  negro  slave,  warranted  him  to  be  in  good  health,  and  in  all  respects  sound  : 
The  negro,  at  the  time  of  sale,  had  a  defect  in  his  left  arm,  which  was  clearly  visible,  the  arm 


Chap.  1.]  Of  Sale  of  Goods,  fyc.  116 

firms  that  they  are  the  goods  of  A.  which  he  has  authority  to  sell,  when  they 
are  the  goods  of  another,  though  it  is  not  averred,  that  he  knew  them  to  be  the 
goods  of  a  stranger,  {h)  This  distinction,  however,  is  said  to  have  been  taken, 
that  where  the  seller  has  the  possession  of  the  goods,  the  bare  affirming  them 
to  be  his  is  sufficient ;  but  if  that  be  out  of  possession,  there  must  be  an  express 
warranty  in  order  to  support  an  action.  Thus,  in  the  case  of  Medina  v. 
Stoughton,{i)  where  the  declaration  stated,  that  the  defendant  being  possessed 
of  a  certain  lottery  ticket  sold  it  to  the  plaintiff,  affirming  it  to  be  his  own  ; 
whereas  in  truth  it  was  not  his,  but  another's.  *The  defendant  pleaded  that  he 
bought  it  bona  fide,  and  so  sold  it.  Holt  Ch.  J.  said,  "  Where  one  having  the 
possession  of  any  personal  chattel  sells  it,  the  bare  affirming  it  to  be  his 
amounts  to  a  warranty,  and  an  action  lies  on  the  affirmation  ;  for  his  having 
possession  is  a  colour  of  title,  and,  perhaps,  no  other  title  can  be  made  out ; 
aliter,  where  the  seller  is  out  of  possession,  for  there  may  be  room  to  question 
the  seller's  title,  and  caveat  emptor,  in  such  case,  to  have  either  an  express  war- 
ranty or  a  good  title  :  so  it  is  in  the  case  of  lands,  whether  the  seller  be  in  or 
out  of  possession,  for  the  seller  cannot  have  them  without  a  title,  and  the  buy- 
er is  at  his  peril  to  see  it."  But  Mr.  Justice  Buller,[k)  in  speaking  of  this 
case,  makes  the  following  observation  ;  "  The  case  of  Medina  v.  Stoughton, 
in  the  point  of  decision,  is  the  same  as  Crosse  v.  Gardner ;  (I)  but  there  is  an 
obiter  dictum  of  Holt  Ch.  J.  that  where  the  seller  of  a  personal  thing  is  out  of 
possession,  the  bare  affirming  it  to  be  his  is  not  sufficient,  for  there  may  be 
room  to  question  the  seller's  title,  and  caveat  emptor,  in  such  case,  to  have  an 
express  warranty  or  a  good  title.  This  distinction  by  Holt  is  not  mentioned 
by  Lord  Ray?nond,  593,  who  reports  the  same  case  ;  and  if  an  affirmation  at 
the  time  of  sale  be  a  warranty,  I  cannot  feel  a  distinction  between  the  ven- 
dor's being  in  or  out  of  possession.  The  thing  is  bought  of  him,  and  in  conse- 
quence of  his  assertion  :  and  if  there  be  any  difference,  it  seems  to  me  that  the 
case  is  strongest  against  the  vendor  when  he  is  out  of  possession  because  then 
the  vendee  has  nothing  but  the  warranty  to  rely  on." 

The  warranty  must  be  upon  the  sale ;  for  if  it  be  made  after,  and  not  at  the 
time  of  the  sale,  it  is  a  void  warranty ;  for  it  is  then  made  without  any  considera- 
tion ;  neither  does  the  buyer  then  take  the  goods  upon  the  credit  of  the  vendor. 
Also  the  warranty  can  only  reach  to  things  in  being  at  the  time  of  the  warranty 
made,  and  not  to  things  in  futuro ;  as,  that  a  horse  is  sound  at  the  buying  of 
him  ;  not  that  he  will  be  sound  two  years  hence,  (m)     But  if  the  vendor  knew 

(h)   1   Rol.  Abr.   91.  pi.  7.    Com.  Dig.  tit.  (m)  Finch's  Law,  189.     Dy.  76.  a.     F.N. 

Action  upon  the  case  for  a  deceit,  A.  8.  C.  B.  98.  K.     2  Cro.  630.     2  Rol.  5.  3  Bl.  Com. 

(t)   ISalk.  2)0.   1  Ld.  Raym.  593.  S.  166.     But  see  Doug.  Rep.   735.  where  Lord 

Cro.  Jac.  J 97.  S.  P.  Mansfield  is  reported  to  have  said,  "There 

(k)  Vide  Pasley  v.  Freeman,  3  T.  R.  57.  is  no  doubt   but  you  may   warrant  a   future 

(<)   Carth.  90.  event." 

being  thin  and  crooked  :  The  vendor,  at  the  same  time,  called  the  attention  of  the  purchas- 
er to  this  defect,  and  offered  to  shew  it.  In  an  action  of  the  case  on  the  warranty,  which  was 
in  writing,  the  court  held,  that  parol  evidence  was  admissible  to  shew  the  communications 
made  by  "the  defendant,  at  the  time  of  the  sale ;  and  therefore,  that  the  plaintiff  could  not 
recover.     Schuyler  v.  Rtus,  2  Caines,  202. 

*117 


117  Of  Warranties  upon  Contracts        [Part  II. 

the  goods  to  be  unsound,  and  hath  used  any  art  to  disguise  them,  or  if  they  are 
in  any  shape  different  from  what  he  represents  them  to  be  to  the  buyer,  the 
vendor  is  answerable  for  the  misrepresentation,  (n)  So  upon  every  contract 
of  sale  to  furnish  manufactured  goods,  whether  by  sample  or  otherwise,  how- 
ever low  the  price  may  be,  where  there  is  no  opportunity  of  inspection,  the 
law  implies  that  they  shall  be  merchantable.  Thus,  in  the  case  of  Laing  v. 
Fulgeon,(o)  which  was  an  action  upon  a  *breach  of  an  implied  warranty  ; 
and  at  the  trial  the  evidence  was,  that  the  defendant,  having  previously  sent  to 
the  plaintiff  a  sample  of  the  saddles  that  could  be  furnished  at  the  price  after- 
mentioned  ;  the  plaintiff  gave  him  an  order  for  "  goods  for  North  America, 
three  dozen  single  flap  saddles,  24s.  a  26s.  with  cruppers,"  &c.  It  was 
proved,  that  the  saddles  delivered  were  of  very  inferior  materials  and  work- 
manship, and  useless  and  unmerchantable ;  and  they  did  not  correspond  with 
the  sample.  After  verdict  for  the  plaintiff,  it  was  objected  that  there  was  no 
proof  of  any  contract  that  the  goods  should  be  merchantable ;  and  the  price 
fixed  being  so  low,  that  a  good  saddle  could  not  be  made  for  that  money,  the 
plaintiff  was  thereby  sufficiently  apprised  what  species  of  goods  he  was  to 
expect ;  there  was  no  warranty  in  fact,  and  the  law  did  not  under  these  circum- 
stances imply  a  warranty  that  the  goods  were  merchantable.  But  the  Court 
held,  "  that  although  there  was  no  express  contract  that  the  article  should  be 
merchantable,  it  resulted  from  the  whole  transaction  that  the  article  was  to  be 
merchantable.  The  defendant  might  have  rejected  the  order ;  but  having  ac- 
cepted it,  he  ought  to  furnish  a  merchantable  article." 

So,  in  the  drug  trade,  where  it  is  customary  upon  the  sale  of  pimento,  for 
the  auctioneer  or  seller  to  declare  at  the  time  of  sale,  whether  the  article  is 
sea-damaged  or  not ;  and  that  when  no  mention  is  made  of  the  state  of  the 
pimento,  it  is  known  and  understood  in  the  trade  not  to  be  sea-damaged ;  this 
silence  raises  an  implied  warranty  that  it  is  not  sea-damaged.  (p)  So,  if  a  pub- 
lican agrees  with  his  brewer  to  take  all  his  beer  of  him  ;  the  brewer  is  bound, 
without  any  express  warranty,  to  supply  the  publican  with  beer  of  a  fair  and 
wholesome  quality. (q) 

So,  where  goods  are  described  in  an  invoice,  or  bill  of  parcels,  to  be  of  a  par- 
ticular description  and  quality,  and  charged  as  such,  this  amounts  to  a  warranty  ; 
and  the  seller  is  bound  to  deliver  goods  of  that  description  and  quality  ;  and  if  he 
does  not,  he  is  liable    to  an  action  for   breach  of  such  warranty,  (r)  (77)     So, 

(n)  Vide  cases  last  cited.  (</)  Holcombe  v.  Hewson,   2  Campb.  391. 

(o)  6  Taunt.   103.     4  Campb.    169.     See  See  also  Cooper  v.   Twibill,  3   Campb.   286. 

also  Gardiner  v.  Gray,  4  Campb.  144.  S.  P.  n.  a. 

(;>)  Jones  v.  Bou-den,  4  Taunt.  S47.  (r)   Bridge  v.  Wain,  1  Stark.  504. 

(77)  The  defendant,  as  agent  and  consignee  of  a  merchantile  house  in  New-Providence, 
received  a  quantity  of  wood,  described  in  the  invoice  as  brazilletto,  but  which,  in  fact,  was 
peachum  wood,  an  article  of  very  inferior  value.  He  advertised  it  by  the  description  of 
brazilletto,  exhibited  the  invoice  to  the  plaintiffs,  and  on  a  sale  to  them,  made  out  the  bill  of 
parcels  as,  and  for,  brazilletto.  The  wood  was  delivered  from  the  vessel  under  the  inspec- 
tion of  the  plaintiffs'  agent :  There  was  no  express  warranty  of  the  article  ;  nor  was  it 
pretended,  that  the  defendant  knew  it  to  be  peachum,  or  that  the  plaintiffs,  at  the  time  of  the 
sale,  suspected  it  to  be  other  than  brazilletto.    No  fraud  was  imputed  to  the  defendant.     As 

•118 


Chap.  1.]  Of  Sale  of  Goods,   fyc.  118 

where  a  warranty  of  seed  is  given  in  these  terms,  "  good  round  white  turnip- 
seed,  which  the  seller  could  warrant ;"  if  the  seed  fails  in  the  growth  on  ac- 
count of  the  badness  of  the  quality,  the  seller  is  answerable  to  the  buyer  upon 
such  a  warranty,  for  the  damage  he  may  have  sustained  in  consequence  of  the 
failure  of  the  crops.(s) 

But  in  a  sale  of  pictures,  the  putting  down  the  name  of  an  artist  in  a  cata- 
logue as  the  painter  of  any  picture,  is  not  such  a  warranty  as  will  subject  the 
party  selling  to  an  action,  if  it  turns  out  that  he  might  be  mistaken,  and  that  it 
was  not  the  work  of  the  artist  to  whom  it  was  *attributed.  Thus,  in  the  case  of 
Jeudwine  v.  Slade,  (t)  which  was  an  action  brought  to  recover  damages  on  the 
sale  of  two  pictures,  one  of  which  was  said  to  be  a  Sea-Piece  by  Claud  Lo- 
raine,  the  other  a  Fair  by  Teneirs,  which  the  defendant  had  sold  to  the  plaintiff 
as  originals,  when  in  fact  they  were  copies.  The  defence  relied  on  was,  that 
they  were  sold  under  a  catalogue,  not  amounting  to  an  absolute  warranty,  but 
upon  which  the  buyer  was  to  exercise  his  own  judgment ;  and  further,  that  a 
bill  had  been  filed  by  the  defendant  two  years  ago  to  compel  the  plaintiff  to 
complete  the  sale  ;  to  which  he  had  put  in  no  answer,  but  paid  the  money,  and 
that  he  therefore  could  not  now  seek  to  rescind  the  contract  after  such  acquies- 
cence. The  plaintiffs  counsel  answered  this  objection,  by  insisting  that  the 
name  of  the  artist  put  opposite  any  picture  in  a  catalogue  was  a  warranty  ;  and 
if  the  article  sold  did  not  correspond  with  it,  it  avoided  the  sale  ;  and  as  to  the 
transaction,  in  respect  of  paying  the  money,  that  the  plaintiff  was  deceived,  but 
had  brought  his  action  as  soon  as  he  discovered  the  fraud.  Several  of  the  most 
eminent  artists  and  picture  dealers  were  called,  who  differed  in  their  opinion 
respecting  the  originality  of  the  pictures.  When  the  evidence  was  closed,  Lord 
Kenyon  Ch.  J.  said  :  "  It  was  impossible  to  make  this  the  case  of  a  warranty  ; 
the  pictures  were  the  work  of  artists  some  centuries  back,  and  there  being  no 
way  of  tracing  the  picture  itself,  it  could  only  be  matter  of  opinion,  whether  the 
picture  in  question  was  the  work  of  the  artist  whose  name  it  bore,  or  not ;  and 
the  catalogue  of  the  pictures  in  question  leaves  the  determination  to  the  judg- 
ment of  the  buyer,  who  is  to  exercise  that  judgment  in  the  purchase  ;  for  if  the 
seller  only  represents  what  he  himself  believes,  he  can  be  guilty  of  no  fraud." 
The  plaintiff  was  accordingly  nonsuited. 

Where  a  treaty  for  the  sale  of  a  commodity  had  been  entirely  broken  off,  a 
warranty  made  at  the  time  of  such  treaty,  was  holden  not  to  extend  to  a  sub- 
sequent sale  of  the    same  commodity  at  a  reduced  price.     Thus,  in  an  anony- 


ms)  Button  v.  Corder,  7  Taunt.  405.  {t)  2  Esp.  Rep.  572. 


soon,  however,  as  the  quality  of  the  wood  was  discovered,  the  plaintiffs  offered  to  return  it 
to  the  defendant,  and  demanded  the  purchase  money.  The  defendant  refused  to  accept  the 
one,  or  repay  the  other;  as  he  had  previously  remitted  the  avails  of  the  sale  to  his  principals. 
In  an  action  on  the  case  for  selling  the  peackum  wood  for  brazilletto,  it  was  held,  that  the  de- 
scription of  the  article  mentioned  in  the  advertisement  and  bill  of  parcels,  did  not  amount  to 
a  warranty  ;  and  therefore,  that  the  plaintiffs  were  not  entitled  to  recover.  Seixas  v.  Woods, 
2  Caines,  4S.  So,  an  advertisement  of  property  for  sale,  which  gives  it  a  higher  character 
than  it  deserves,  will  not  amount  to  a  warranty  of  its  cmality  ;  especially,  if  the  purchaser 
rely  on  his  own  examination.  Calhoun  v.  Vecchio,  C.  C.  April  1812,  MS.  Reports,  Whart. 
Dig.  595. 

*119 


119  Of  Warranties  upon  Contracts  [Part  II. 

tnous  case,  (u)  which  is  reported  as  follows  :  "  The  defendant  came  to  the 
plaintiff,  who  was  a  sword-cutler,  to  sell  him  a  second-hand  sword  ;  and  upon 
his  warranting  it  to  be  a  silver  hilt,  the  plaintiff  offered  him  a  guinea  and  a 
half  for  it ;  the  defendant  refused  to  take  the  money,  and  thereupon  went  to 
several  other  sword-cutlers,  but  not  meeting  with  any  who  would  give  so 
much  as  the  plaintiff,  he  came  back  to  him,  and  told  him  he  should  have  it 
for  the  price  he  offered  ;  the  plaintiff  upon  that,  thinking  to  have  it  cheaper 
refused  to  give  the  guinea  and  a  half,  and  at  last  beat  down  the  price  to 
28s.,  which  was  paid  the  defendant  for  the  sword.  Afterwards  the  plain- 
tiff found  that  the  gripe  of  it  was  only  silver,  and  the  rest  of  the  hilt  was 
•brass  ;  upon  which  he  brings  his  action  against  the  defendant,  and  declares 
upon  the  warranty  of  the  hilt's  being  silver,  when  in  fact  it  was  brass  ;  but 
not  being  able  to  prove  a  warranty  upon  the  second  bargain,  he  was  non- 
suited. Pratt  Ch.  J.,  being  of  opinion,  that  the  warranty  upon  the  bidding 
a  guinea  and  a  half  would  not  extend  to  this  sale,  which  was  a  new  and  differ- 
ent contract  at  a  different  time.  Also  he  seemed  to  be  of  opinion,  that  the 
gripe  being  silver,  the  plaintiff  should  have  declared  specially  on  a  warranty 
of  the   rest  of  the  hilt  only,  and  have  said  that  that  part  was  brass." 

If  a  person  having  goods  which  are  damaged,  and,  knowing  them  to  be  in  that 
state,  sell  them  for  sound  and  marketable  goods,   and  affirm  them  to  be  so,  an 
action  on  the  case  lies  for  the  deceit :  (78)  but  if  the  seller,   at  the  time  of  the 
sale,  does  not  know  that  they  are  damaged,  no  action  lies  without  an  express 
warranty ;  though,   at  the    time   of  the   sale,   he   affirms  them   to  be  sound. 
Thus,  in  the  case  of  Chandelor  v.  Lopus,  (u)which   was   an  action  upon    the 
case  wherein  the  plaintiff  declared  ;  whereas  the  defendant  being  a  goldsmith, 
and  having  skill  in  jewels  and  precious  stones,  had  a  stone  which  he    affirmed 
to  the  plaintiff  to  be  a  bezar-stone,  and  sold    it  to  him  for  100/.,  whereas  it  was 
not  a  bezar-stone.     The  defendant  pleaded  not  guilty,  and  a  verdict  was  given, 
and  judgment  entered  for  the  plaintiff  in  the   King's  Bench.     But   error  was 
thereof  brought  in  the   exchequer  chamber;  because   the   declaration  did  not 
contain  matter  sufficient  to  charge  the  defendant,  viz.  that  he  warranted  it  to  be 
a  bezar-stone,  or  that  he   knew  that  it  was  not  a  bezar-stone  ;  for  it  may  be 
that   he   himself  was   ignorant  whether  it  was  a    bezar-stone  or  not.     And  all 
the  justices  and    barons  (except  Anderson)  held,  "  that  for  this  cause  it  was 
error,  for  the  bare  affirmation  that  it  was  a  bezar-stone,  without  warranting  it  to 
be  so,  is  no  cause  of  action :   and  although  he  knew  it  to  be  no  bezar-stone,  it  is 
not  material ;  for  every  one  in  selling  his  wares  will  affirm  that  his  wares  are 
good,  or  the  horse  which  he  sells  is  sound ;  yet  if  he  does  not  warrant  them 

{n)  Stra.  414.  B.   94.  C.  3  Bl.  Com.  166.  3    Wooddeson's 

(»)  Cro.  Jac.  4.  et  vide  1  Dy.   75.  a.  F.  N.     Lect.  199. 


(73)  Where  A.  purchased  a  waggon  of  B.,  on  sight,  and  from  the  representations  of  B., 
as  to  its  value,  was  induced  to  give  a  much  greater  price  for  the  article  than  it  was  worth  ; 
it  was  held,  that  B.  was  not  liable  to  an  action  of  deceit  for  a  false  affirmation,  there  being 
no  express  warranty  or  fraud.     Davis  v.  Meeker,  5  J.  R.  354. 
*120 


Chap.  1.]  Of  Sale  of  Goods,  §>c.  120 

to  be  so,  it  is  no  cause  of  action,  and  the  warranty  ought  to  be  made  at  the 
time  of  the  sale ;  as  F.  N.  B.  94.  C.  and  98  B.  5  Hen.  7.  pi.  41.  9  Hen.  6. 
pi.  53.  12  Hen.  4.  pi.  1.  42  Ass.  8.  7  Hen.  4.  pi.  15.  Wherefore  forasmuch 
as  no  warranty  is  alleged,  they  held  the  declaration  to  be  ill."  But  Anderson 
to  the  contrary  ;  "  for  the  deceit  in  selling  it  for  a  bezar,  whereas  it  was  not  so, 
is  cause  of  action."  But,  notwithstanding,  it  was  adjudged  to  be  no  cause,  and 
the  judgment  was  reversed. 

So,  where  a  ship,  or  any  other  commodity  is  sold  "  with  all  faults,"  and  so 
declared  at  the  time  of  sale,  the  vendor  is  not  answerable  for  any  latent  defect 
or  secret  fault  known  to  him  at  the  time,  unless  he  *practise  some  artifice  to 
prevent  a  discovery  of  it.  by  the  purchaser. (w)  A  contrary  doctrine,  however, 
was  once  held ;(»)  but  that  decision  was  afterwards  much  considered,  and  over- 
ruled, (y) 

So,  upon  a  return  and  exchange  of  wine  between  a  wine-merchant  and  his 
customer,  where  no  representation  is  made  at  the  time  by  the  customer  of  the 
quality  of  the  wine  he  returns,  and  no  fraud  is  practised,  he  is  not  answerable 
for  the  condition  of  the  wine  at  the  time  of  its  return  to  the  wine  merchant. 
Thus,  in  the  case  of  La  Neuville  v.  Nourse,(z)  the  facts  proved  were  as  fol- 
lows ;  the  defendants  who  had  purchased  ten  dozen  of  Burgundy  wine  of  the 
plaintiffs  about  a  year  before,  applied  to  the  plaintiffs  to  have  it  exchanged  for 
Champaigne,  which  was  at  that  time  of  the  same  price.  The  plaintiffs  agreed 
to  this,  and  the  exchange  took  place.  When  the  Burgundy  was  sent  to  the  de- 
fendants it  was  of  the  first  quality  and  in  the  best  condition ;  but  when  it  was 
returned  it  was  quite  sour,  and  only  fit  to  be  used  as  vinegar.  An  action  was 
brought  to  recover  the  value  of  the  Champaigne,  or  a  compensation  for  the  bad 
condition  of  the  Burgundy.  There  was  no  evidence  of  any  representation  by 
the  defendants  respecting  the  condition  of  the  wine,  or  of  any  promise  by  them 
upon  the  subject.  Lord  Ellenborough  Ch.  J.  held,  that  without  evidence  of  an 
express  warranty,  or  of  direct  fraud,  the  action  could  not  be  supported  ;  and 
that  the  maxim  of  caveat  emptor  applied  to  this  case. 

But  it  is  clear,  that  any  intentional  deception  practised  by  the  seller,  for  the 
purpose  of  disguising  the  latent  defects  of  a  ship  or  any  other  article  sold,  and 
in  order  to  elude  the  vigilance  of  the  buyer,  is  fraudulent,  and  avoids  the  con- 
tract. Thus,  in  the  case  of  Schneider  v.  Heath(a)  which  was  an  action  for 
money  had  and  received,  to  recover  back  the  deposit  paid  upon  the  purchase 
of  a  ship  called  the  Juno,  on  the  ground  of  misrepresentation  and  fraud  on  the 
part  of  the  vendor.  The  particular  exhibited  at  the  sale  described  the  hull  of 
the  ship  to  be  nearly  as  good  as  when  launched,  requiring  a  most  trifling  outfit ; 
but  further,  "  that  the  vessel  and  her  stores  are  to  be  taken  with  all  faults,  as 
they  now    lie,  without  any  allowance  for  weight,  length,  quality,  or  any  defect 

(io)   Baglehole  v.    Waters,  3   Campb.   154,  (y)  Vide  the  capes  cited  in  note  to. 

and  see  4  Taunt.  779.  (r)  3  Campb.  351. 

(x)    Mcllish    v.   Motteux,  Peake's    N.  P.         (a)  Ibid.  506.  et  vid.  Fletcher  v.  Bowsher, 
Rep.  115.  2  Stark.   561. 

16  *121 


121  Of  Warranties   upon  Contracts  [Part  II. 

whatever."     The  vessel  was  purchased  hy  the  plaintiff  for  1580/.  and  he    im- 
mediately paid  the  deposit  of  397/.  2s.  which  he  now  sought  to  recover.     Hav- 
ing taken  possession  of  her,  he  sent  her  to  a  shipwright's  to  be  examined  ;  here 
it  was  found  that  her  bottom  was  worm-eaten,  that  her  keel  was    broken,  that 
she  was  quite    unseaworthy,  and  that  she  by  no  means    corresponded  with  the 
description  in  the  particular.     The  plaintiff  *therefore   refused  to  complete  the 
purchase,  and  demanded  back  his  deposit.     At  the  trial  it  appeared  in  evidence, 
that  the  ship   belonged  to  a  club  of  underwriters,  to  whom  she  had  been    aban- 
doned, and  on  whose  account  she  was  sold ;  that  the  state  of  her  bottom  and 
her  keel   must  have  been   known  to  the  agents  employed  to  conduct  the  sale  ; 
and  that  the  captain,  when  the  ship  was  advertised  for  sale,    took  her  from  the 
ways  on  which  she  lay,   and  where  the  state  of  her  bottom  and  her  keel  might 
easily  have  been  discovered,  and  kept  her  constantly  afloat,  so  that  these  defects 
were  completely  concealed  by  the  water.     The  person  who  had  framed  the  partic- 
ular stated,  that  he  had  inserted  the  description   without  having  examined  her. 
Mansfield   Ch.  J.  said.  "The  words  are  very  large  to  exclude  the  buyer  from 
calling  upon  the  seller  for  any  defect  in  the  thing  sold  ;  but  if  the  seller  was'guilty 
of  any  positive  fraud  in  the  sale,  these  words  will  not  protect  him  ;    there  might 
be  sueh  fraud,  either  in  a    false    representation,  or  in  using  means  to   conceal 
some  defect.     1  think  the  particular  is  evidence  here. by  way  of  representation, 
which  states  the  hull  to  be  nearly  as  good  as  when  launched,  and  that  the  ves- 
sel required  a  most  trifling  outfit.     Now,  is  this  true  or  false  1     If  false,  it  is   a 
fraud  which  vitiates  the  contract.     What  was  the  fact?  the  hull  was  worm-eat- 
en, the  keel  was  broken,  and  the  ship  could  not  be  rendered  sea-worthy    with- 
out a  most  expensive  outfit.     The  agent  tells  us,  he  framed  this  particular  with- 
out knowing  any    thing  of  the  matter  ;  but  it  signifies  nothing,  whether    a  man 
represents  a  thing  to  be  different  from  what  he   knows  it  to  be,  or  whether  he 
makes  a  representation  which  he  does  not  know  at  the  time  to  be  true  or  false, 
if  in  point  of  fact  it  turns  out  to  be  false.     But  besides  this,  it  appears  here  that 
means  were    taken    fraudulently   to  conceal  the  defects  in    the    ship's    bottom. 
These  must  have  been  known  to  the  captain,  who   is  to  be  considered   as    the 
agent  of  the  owners  ;  and  he  evidently,  to  prevent  their  being  discovered  by  per- 
sons disposed  to  bid  for  her,  removed  her  from  the  ways,  where  she  lay  dry,  and 
kept  afloat  in    the  dock  till  the  sale  was  over.     Therefore,   consistently    with 
the  decided  cases  upon  this  subject,  I  am  of  opinion  that  the  plaintiff  is  entitled 
to  recover   back  his  deposit."     And  a  verdict  was    accordingly  found  for   the 
plaintiff  to  that  extent. 

So,  where,  in  an  advertisement  for  the  sale  of  a  ship,  she  was  described  as 
41  a  copper-fastened  vessel,"  but  with  these  words  subjoined,  "  the  vessel  to  be 
taken  with  all  faults,  without  allowance  for  any  defects  whatsoever;"  the  vessel 
when  sold  was  only  partially  copper-fastened,  and  that  she  was  not  what  is 
called  in  the  trade,  a  copper-fastened  vessel.  The  buyer,  however,  had  a  full 
*12S 


£s 


Chap.  1.]  Of  Sale  of  Goods,  fyc. 

opportunity  of  examining  the  vessel  before  the  sale.  But  it 
that  the  buyer  was  entitled  to  damages  in  an  action  upon  the 
that  the  words  "with  all  faults"  could  only  mean  all  faults  wrf 
tened  *ship  may  have  ;  but  here  the  vessel  was  not  what  she  was  warranted  to 
be,  namely,  "  a  copper-fastened  vessel."  (a)  In  all  cases  of  sales,  where  the 
goods  upon  examination  do  not  correspond  with  the  sample  and  warranty,  the 
buyer  should  immediately  give  notice  thereof  to  the  seller,  and  offer  to  return 
them  ;  for  by  neglecting  to  do  so  within  a  reasonable  time  after  the  sale  and  in- 
spection, every  inference  would  be  taken  most  strongly  against  the  presumption 
of  their  having  been  defective  at  the  time  of  delivery.  Thus,  in  the  case  of 
Prosser  v.  Hooper, (b)  which  was  an  action  against  the  seller  upon  a  breach  of 
warranty  upon  a  sale  of  lOOlbs.  weight  of  saffron;  at  the  trial  it  was  proved 
on  the  part  of  the  plaintiff,  that  the  article  delivered  was  not  saffron,  but  that  a 
fourth  part  consisted  of  a  vegetable  resembling  it,  which  it  was  impossible  to 
detect  at  the  time  of  sale.  But  on  the  part  of  the  defendant  it  was  proved,  that 
the  plaintiff  knew  that  the  saffron  was  of  an  inferior  quality,  and  that  they  paid 
for  it  accordingly,  at  the  rate  of  48s.  per  pound,  when  the  best  was  worth  13s. ; 
it  was  also  proved,  that  the  plaintiffs  examined  the  bulk,  and  refused  to  buy  by 
sample  ;  that  they  kept  it  six  months  without  objecting  to  the  article,  and  that 
they  had  sold  part  of  it,  when  they  insisted  that  it  was  not  saffron;  and  brought 
their  action  accordingly.  It  was  urged  by  the  plaintiff's  counsel,  that  the  keep- 
ing of  the  article  for  six  months  could  not  do  away  the  contract,  which  was  for 
the  purchase  of  saffron,  and  that  the  maxim  of  caveat  emptor,  could  not  be  set 
up  as  a  defence  for  the  non-performance  of  a  written  contract.  The  jury,  how- 
ever, found  a  verdict  for  the  defendant.  And  upon  a  motion  for  a  rule  to  set 
aside  this  verdict,  the  Court,  after  argument,  refused  the  rule  ;  and  Lord  Ch.  J. 
Gibbs  said,  "  This  article  was  sold  to  the  plaintiffs  by  the  name  of  saffron ; 
they  examined  it  with  great  minuteness ;  received  it  into  their  custody ;  kept  it 
six  months,  and  then  sold  a  part  of  it.  Although  only  three-fourths  of  it  were 
saffron,  still  it  was  fair  for  the  jury  to  infer,  from  the  inferior  price  that  was 
given  for  it,  that  it  was  such  an  article  that  the  plaintiffs  intended  to  purchase  : 
and  under  all  the  circumstances,  they  were  justified  in  giving  their  verdict 
for  the  defendant." 

3.  Of  the  Warranty  of  soundness,  &c.  of  Cattle.] — Upon  the  sale 
of  cattle,  a  warranty  of  soundness  is  frequently  given  by  the  seller  to  the  buy- 
er. This  kind  of  warranty,  however,  gives  rise  to  great  disputes  and  litiga. 
tion  ;  and  it  is  much  to  be  feared,  that  deceit  and  false  swearing  are  too  often 
resorted  to  on  these  occasions  in  order  to  get  rid  of  the  liability  upon  warranty. 
It  is,  indeed,  sometimes  difficult  to  ascertain  what  amounts  to  unsoundness  in  a 
horse.  I  shall  therefore  lay  before  the  reader  the  substance  of  the  different 
cases  which  have  been  determined  on  the  question  of  warranty  and  deceit,  and 
shew  the  general  rules  of  law   *relating  to   the  sale  of  cattle.     In  our  earlier 

(«)  Shepherd  v.  Kain,  5  Barn.  &  Aid.  240.     140.     Ante  111.  129. 
(6)  1   Mo.    Rep.    106.    et    vid.   1    Stark. 

*123  *124 


-r^4  Of  Warranties  upon  Contracts  [Part  II. 

books  on  this  subject,  we  find  it  laid  down,  that  if  there  be  a  communication 
between  A.  and  B.  for  the  buying  of  sheep,  and  thereupon  B.,  the  vendor,  says 
they  are  his  own  sheep,  when  in  truth  they  are  the  sheep  of  another,  and  A. 
buys  them  of  B.,  an  action  lies  against  B.  though  he  made  not  any  express 
warrranty  of  the  sheep.(c)  So,  if  A.  sells  sheep,  and  warrants  that  they  are 
sound,  and  shall   continue    so  for   a  year    after,    this    is  good,    and  shall  bind 

him.(d) 

The  words  of  a  warranty  shall  have  a  reasonable  construction  ;  as(e),  if  a 
man  take  sheep  to  depasture,  and  warrant  that  he  will  keep  them  sound  in  his 
land,  that  shall  be  intended  that  his  pasture  shall  not  infect  them  ;  but  an 
action  does  not  lie  if  they  were  unsound  at  the  time  of  the  warranty.  But 
where  a  person  sell  a  horse,  affirming  it  to  have  been  his  from  a  colt,  when  it 
was  not,  an  action  lies  for  this  deceit. (/)  So,  if  a  man  sell  unto  another  a 
horse,  and  warrant  it  to  he  sound  and  good,  &c.  ;  if  the  horse  be  lame  or  dis- 
eased that  he  cannot  work,  the  buyer  shall  have  an  action  upon  the  case 
against  the  seller.  (?)  But  it  is  said,  that  unless  the  seller  expressly  warrant  the 
horse  to  be  sound,  no  action  will  lie ;  for  if  he  sell  it  without  such  warranty,  it 
is  at  the  buyer's  peril,  and  his  eyes  ought  to  be  his  judges  in  that  case.  (A) 

So,  a  general  warranty  will  not    extend   to    guard  against  defects  that   are 
plainly  and  obviously  the  object  of  one's  senses ;  as,  if  a  horse  be  warranted 
perfect,  and  wants  either  a  tail  or  an  ear,  unless  the  buyer  in  this  case  be  blind. 
But  if  cloth  is  warranted  to  be  of  such  a  length,  when  it  is  not,  there   an  action 
on    the    case   lies    for    damages  ;  for   that  cannot  be  discerned  by  sight,    but 
only  by  a  collateral  proof,  the  measuring  of  it.  (i)     Also,  if  a  horse  is  warrant- 
ed sound,  and  he  wants  the  sight  of  an  eye,  though  this  seems  to  be  the  object 
of  one's  senses,  yet,  as  the    discernment   of  such  defects   is  frequently   a  mat- 
ter of  skill,  it  hath  been  held  that  an  action  on  the  case  lieth  to  recover   dam- 
ages'/or this  imposition,  (k)     Thus,  in  the  case  of  Butlerfield  v.  Burroughs,(l) 
the  plaintiff  declared  that  the  defendant   sold   him  a  horse   such  a  day,  and   at 
such  a  place,   and  then  and  there  warranted   the  said  horse  to  be  sound,  wind 
and  limb  ;  whereupon  he  paid  his  money,  and  avers  the  horse  had  but  one  eye, 
&c.     The  defendant  pleaded  non  warrantizavit,   upon  which  there  was  a  ver- 
dict for  the  plaintiff:  but  in  arrest  of  judgment,  it  was   objected,  first,  that  the 
want  of  an  eye  was  a  visible  thing  ;  whereas  die    warranty  extends  only  to  se- 
cret infirmities.       To   this,    however,   it    was    answered,    and  resolved  by   the 
Court,  that  this  might  be  so,    *and   must  be   intended   to  be  so,  since  the  jury 
had  found  the  defendant  did   warrant.       The  second  objection   was,    that   the 
warranty,  as  is  here  set  forth,  might  be   at   a  time  after  the  sale  ;  whereas  it 
ought  to  be  part  of  the  very  contract;  and   therefore  it  is  always   alleged  war- 


(c)  1  Rol.  Abr.  90.  pi.  6.  Cro.  Jac.  474.  (h)  F.  N.  B.  94.  C.  Bridg.  127. 

(d)  1  Dan.  Abr.  18S.  (i)  Finch  L.  189.     3  Bl.  Com.  165. 

(e)  1  Rol.  Abr.  97.  pi.  4.  (k)  Ibid. 

(/)   1  Rol.  Abr.  91.  1.  10.  (/)  1  Salk.  211.  et  vid.  2  Rol.  Rep.  5.  Bridg. 

M  F.  N.  B.  94.  C.  1  Rol.  Abr.  96.  Doik*.      128.     Cro.  Jac.  387.     3  Bulst.  95.     3  Keb. 

18.  101.  F.N.  B.  94.  C.  n.  c. 

*125 


Chap.  I.]  Of  Sale  of  Cattle,   $c.  125 

rantizando  vendidit.  Sed  non  allocatur ;  for  the  payment  was  afterwards,  and 
it  was  that  which  completed  the  bargain,  which  would  have  been  imperfect 
without  it. 

So,  if  A.  sells  a  horse  to  B.  and  warrants  him  to  be  sound  wind  and  limb, 
and  clean  of  legs,  whereas  he  well  knows  that  he  is  shoulder  pitched,  and  has 
splints  upon  his  legs,  an  action  lies  against  him  upon  this  warranty  ;  for  these 
imperfections  are  not  subject  to  the  view  of  an  unskilful  person. (m)  But  a 
warranty  that  a  horse  is  sound,  is  not  falsified  by  its  labouring  under  a  tem- 
porary injury  happening  from  an  accident.  Thus,  in  the  case  of  Garment  v. 
Barrs,(n)  which  was  an  action  of  assumpsit  on  a  warranty  of  a  mare  sold  by 
the  defendant  to  the  plaintiff.  The  declaration  stated,  that  in  consideration 
that  the  plaintiff,  at  the  special  instance  and  request  of  the  defendant,  had 
bought  of  him  a  certain  mare  of  great  value,  the  defendant  undertook  and  pro- 
mised the  plaintiff  that  she  was  sound,  &c.  At  the  trial,  the  first  witness  call- 
ed on  the  part  of  the  plaintiff  proved  the  sale,  and  that  the  defendant  warrant- 
ed her  to  be  sound  ;  but  he  said  further,  that,  upon  the  plaintiff  observing  that 
she  went  rather  lame  of  one  leg,  the  defendant  said  that  that  had  been  occa- 
sioned by  her  taking  up  a  nail  at  the  farrier's,  and  except  as  to  that  lameness 
she  was  perfectly  sound.  The  counsel  for  the  defendant  contended  that  the 
plaintiff  should  be  non-suited  on  the  ground  of  a  variance.  He  observed,  that 
the  plaintiff  had  declared  upon  a  warranty  in  general  terms  that  the  mare  was 
sound  ;  whereas  the  warranty  proved  in  evidence  was,  with  an  exception  of 
the  lameness  of  the  foot ;  this  he  contended  was  a  fatal  variance.  But  Eyre 
Ch.  J.  said,  "  A  horse  labouring  under  a  temporary  injury  or  hurt,  which  is 
capable  of  being  speedily  cured  or  removed,  is  not  for  that  an  unsound  horse  ; 
and  where  a  warranty  is  made  that  such  a  horse  is  sound,  it  is  made  without 
any  view  to  such  injury ;  nor  is  a  horse  so  circumstanced  an  unsound  horse 
within  the  meaning  of  the  warranty.  I  am  of  opinion,  that  to  make  the  ex- 
ception such  as  ought  to  have  been  stated  in  the  declaration,  as  a  qualification 
of  the  general  warranty,  so  as  to  make  a  fatal  variance  between  the  warranty 
really  made,  and  that  stated  in  the  declaration,  the  injury  the  horse  had  sus- 
tained, or  the  malady  under  which  he  laboured,  ought  to  be  of  a  permanent 
nature,  and  not  such  as  arose  from  a  temporary  injury  or  accident." 

A  contrary  opinion,  however,  was  once  held  by  Lord  Ellcnborough,  in  the 
case  of  Elton  v.  Brogden,(o)  which  was  an  action  upon  a  warranty  of  a  *horse ; 
it  was  proved  that  it  was  lame  at  the  time  of  the  sale,  which  the  defendant 
admitted,  but  undertook  to  prove  that  the  lameness  was  of  a  temporary  nature, 
that  he  afterwards  recovered,  and  had  become  in  all  respects  sound.  But  Lord 
Ellenborough  Ch.  J.  said,  "  I  have  always  held  and  now  hold,  that  a  warranty 
of  soundness  is  broken,  if  the  animal  at  the  time  of  the  sale  had  any  infirmity 
upon  him  which  rendered  him  less  fit  for  present  service.  It  is  not  necessary 
that  the  disorder  should  be   permanent  or    incurable.     While   a  horse  has  a 


(m)   1  Rol.  Abr.  97.  pi.  14.  (o)  4  Camp.  281. 

(n)  2  Esp.  Rep.  673. 


*126 


126  Of  Warranties  upon  Contracts  [Part  II. 

cough,  I  say  he  is  unsound,  although  that  may  either  be  temporary  or  may 
prove  mortal.  The  horse  in  question  having  been  lame  at  the  time  of  the 
sale,  when  he  was  warranted  to  be  sound,  his  condition  subsequently  is  no  de- 
fence, to  the  action."     And  a  verdict  was  accordingly  found  for  the  plaintiff. 

Upon  a  warranty  of  the  soundness  of  a  horse,  it  is  now  settled,  that  a  horse 
afflicted  with  roaring  is  an  unsoundness,  (p)  But  crib-biting  is  said  not  to  be 
an  unsoundness ;  and  amongst  those  who  are  skilled  in  the  veterinary  art,  it 
is  said,  that  there  is  a  division  in  opinion,  whether  or  not  thrushes,  splints,  and 
quidding,  can  be  deemed  unsoundness^*) 

If  the  seller  of  a  horse  refers  to  a  written  pedigree  to  ascertain  his  age, 
but  declares  he  knows  nothing  more  about  it,  he  is  not  liable  if  the  pedigree 
turns  out  to  be  false.  Thus,  in  the  case  of  Dunlop  v.  Waugh,(q)  which  was 
an  action  of  assumpsit  on  a  promise  that  a  horse,  bought  by  the  plaintiff  of  the 
defendant,  was  only  eight  years  old,  when  in  fact,  he  was  fourteen.  The 
defendant,  when  he  sold  the  horse,  showed  the  plaintiff  a  written  pedigree, 
which  he  had  received  with  him  from  the  person  of  whom  he  had  bought 
him,  and  said  that  he  sold  the  horse  according  to  that  pedigree,  knowing 
nothing  of  him  further  than  he  had  learned  therefrom,  the  mark  being  out  of  his 
mouth  vvhen  he  had  bought  him.  The  pedigree  was  clearly  proved  to  be  false, 
but  the  defendant  had  no  knowledge  of  this  when  he  sold  the  horse.  Lord 
Kenyon  Ch.  J.  was  clearly  of  opinion  "  that  this  was  no  warranty.  The  defen- 
dant related  all  he  knew  of  the  horse,  and  did  not  enter  into  any  express  under- 
taking that  the  horse  was  of  the  age  stated  in  the  pedigree,  but  stated  the 
contents  of  that  which  the  plaintiff  relied  on." 

If  a  horse  is  sold  warranted  sound  ;  and  it  can  be  clearly  proved,  that  it  was 
unsound  at  the  time  of  sale,  the  seller  is  liable  to  an  action  on  the  warranty 
without  either  the  horse  being  returned,  or  notice  given  of  the  unsoundness. 
Thus,  in  the  case  of  Fielder  v.  Starkin,(r)  which  was  an  action  of  assumpsit 
on  the  warranty  of  a  mare,  "  that  she  was  sound,  quiet,  and  free  from  vice  and 
blemish.'"  On  the  trial  it  appeared,  that  the  plaintiff  had  bought  the  mare  in 
question  of  the  defendant,  at  *Winnel  fair,  in  the  month  of  March,  1787,  for 
thirty  guineas  ;  and  that  the  defendant  warranted  her  sound,  and  free  from 
vice  and  blemish.  Soon  after  the  sale,  the  plaintiff  discovered  that  she  was 
unsound  and  vicious,  but  kept  her  three  months  after  this  discovery,  during 
which  time  he  gave  her  physic,  and  used  other  means  to  cure  her.  At  the 
end  of  three  months  he  sold  her  ;  but  she  was  soon  returned  to  him  as  unsound. 
After  she  was  so  returned,  plaintiff  kept  her  till  the  month  of  October,  1787, 
and  then  sent  her  back  to  the  defendant  as  unsound,  who  refused  to  receive  her. 
On  her  way  back  to  the  plaintiff's  stable  the  mare  died  ;  and,  on  her  being 
opened,  it  was  the  opinion  of  the  farriers  that  she  had  been  unsound  a  full 
twelvemonth  before  her  death.     It  also  appeared  that  the  plaintiff  and  defendant 


(p)     Onslow  v.  Eames,  2  Stark.  81.  (q)  Peake'sCas.  Ni.  Pri.  123. 

(*)  Holt   Ni.   Pri.   Cas.   630.    2  Campb.         (r)    1  H.  Bl.   17.  et    vid.  post.  Chap.  4. 

524.  in  notis.  tit.  Money  had  and  received. 
*127 


Chap.  1.]  Of  Sale  of  Cattle,  $c.  127 

had  been  often  in  company  together  during  the  interval  between  the  month  of 
M  arch,  when  the  mare  was  sold   to  the  plaintiff,   and  October,    when  he   sent 
her  back  to  the   defendant ;  but  it  did  not  appear  that  the  plaintiff  had  ever 
in    that   time  acquainted  the    defendant  with  the   circumstance    of  her   being 
unsound.     The  jury  found  a  verdict  for  the  plaintiff,  with  thirty  guineas  dam- 
ages :  but  the  defendant  afterwards  obtained  a  rule  nisi  for  the  plaintiff  to  show 
cause  why  the  verdict  should  not  be  set  aside,  and  a  nonsuit  entered,  upon  the 
ground  that  the  horse  had  not  been  returned,  nor  any  notice  given  to  the  defen- 
dant of  the  unsoundness.     The  Court,  however,  after  argument,  discharged  the 
rule,  and  determined  that  it  was  not  necessary  either  to  return  the  horse,  or  to  give 
notice  of  its  unsoundness. 

But  if  a  warranty  be  accompanied  with  an  undertaking  on  the  part  of  the 
seller  to  take  the  horse  again,  and  pay  back  the  purchase  money ;  if  on  trial  he 
shall  be  found  to  have  any  of  the  defects  mentioned  in  the  warranty,  the  buyer 
must  return  the  horse  as  soon  as  he  discovers  any  of  those  defects,  in  order  to 
maintain  an  action  on  the  warranty,  unless  he  has  been  introduced  to  prolong 
the  trial  by  any  subsequent  misrepresentation  of  the  seller ;  and  in  such  case 
the  term   trial  means  a  reasonable  trial,  (s) 

So,  where  a  horse  is  sold  by  public  auction,  and  one  of  the  conditions  of  sale 
is,  thai  the  purchaser  of  any  horse  warranted  sound,  who  shall  conceive  the  same 
to  he  unsound,  shall  return  him  within  two  days,  otherwise  he  shall  be  deemed 
sound :  if  the  buyer  neglects  to  return  the  horse  within  the  time  allowed,  no 
action  will  lie  on  the  warranty,  (t)  But,  if  a  horse  sold  at  a  public  auction  be 
warranted  sound,  and  six  years  old,  and  it  be  one  of  the  conditions  of  sale  that 
he  shall  be  deemed  sound,  unless  returned  within  two  days,  this  condition  ap- 
plies to  the  warranty  of  soundness  only,  and  not  to  the  age  of  the  horse.  Thus 
in  the  case  of  Buchanan  v.  Parnshaw,(u)  where  a  horse  was  sold  *with  such 
a  warranty,  and  it  was  discovered  ten  days  after  the  sale  to  be  twelve  years 
old ;  and  was  then  offered  to  the  seller,  who  refused  to  take  him.  It  was 
holden  that  an  action  might  be  maintained  by  the  buyer  against  the  seller  upon 
the  warranty  ;  and  that  his  right  to  recover  was  not  affected  by  his  having  sold 
the  horse  after  offering  him  to  the  defendant.  Lord  Kenyon  Ch.  J.  said,  "  The 
condition  of  sale  must  be  confined  solely  to  the  circumstance  of  unsoundness. 
There  is  good  sense  in  making  such  a  condition  at  public  sales ;  because,  not- 
withstanding all  the  care  that  can  be  taken,  many  accidents  may  happen  to  the 
horse  between  the  time  of  sale  and  the  time  when  the  horse  may  be  returned, 
if  no  time  were  limited  :  but  the  circumstance  of  the  age  of  the  horse  is  not 
open  to  the  same  difficulty." 

In  order  to  entitle  the  buyer  to  recover  the  keep  of  an  unsound  horse, 
he  must  make  an  offer  to  return  it  to  the  seller. (v)  And  when  cattle  or 
goods  are  sold  and  delivered  upon  a  warranty  of  soundness,  or  other  particu- 


(s)  Mam  v.  Richards,  2  H.  Bl.  573.  (M)  2  Term  Rep.  745. 

(t)  Jlhsnard  v.  Aldridge,  3  Esp.  Rep.  271.  (r)    Caswelt  v.  Coare,  2  Campb.  82. 

*128 


128 


Of  Warranties  upon  Contracts 


[Part  IT. 


lar  quality,  if  the  buyer  discovers  the  warranty  to  be  untrue,  he  should  imme- 
diately return  the  thing  bought  to  the  seller ;  otherwise  he  will  be  liable  to 
an  action  for  the  price  agreed  on  ;  and  he  cannot  defend  himself  upon  the 
ground  of  the  warranty  being  untrue :  for  where  the  buyer  keeps  the  thing 
bought,  his  only  remedy  in  such  case  is  by  action  for  damages  upon  the  warranty. 
Thus,  in  the  case  of  Curtis  v.  Hannay,  bart,  (w)  which  was  an  action  of  assump- 
sit to  recover  the  price  of  a  horse  sold  by  the  plaintiff  to  the  defendant,  who 
was  an  officer  in  the  life-guards  ;  and  upon  its  being  proved,  that  the  horse 
had  been  warranted,  the  defence  set  up  was,  that  the  warranty  had  not  been 
complied  with,  the  horse  having  defective  eyes  when  sold  ;  but  it  appeared 
in  evidence  that  the  defendant  had  been  informed  of  the  defect  in  the  eyes 
the  day  after  he  bought  the  horse,  but  that  he  kept  it  near  seven  weeks  after- 
wards before  he  returned  it ;  and,  in  the  course  of  which  time,  suspecting  the 
horse  had  some  defect  in  his  feet,  he  had  applied  a  blister  and  some  other 
medicines  to  the  part :  this  produced  a  disorder  called  a  thrush,  and  a  consid- 
erable degree  of  lameness  ;  it  was,  however,  only  a  temporary  lameness,  and 
the  horse  recovered  of  it ;  and  it  was  in  evidence,  that  the  remedies  applied 
to  the  leg  and  foot  could  not  have  affected  the  eyes.  Upon  these  facts  being 
proved,  Lord  Eldon  Ch.  J.  said,  "  He  thought  the  matter  set  up  by  the  defen- 
dant was  no  defence  to  the  action  :  it  appeared  that  the  horse  had  defective  eyes 
when  sold,  and  that  that  defect  was  made  known  to  the  buyer  a  very  short 
time  after  he  had  purchased  him.  Instead  of  returning  him  immediately, 
the  defendant  doctored  him :  this  produced  a  new  disorder,  which  the 
horse  had  not  when  sold.  The  question  was,  would  the  horse,  when  returned 
to  the  seller,  be  diminished  in  *value  by  this  doctoring'?  if  he  would,  his  lord- 
ship said  he  thought  the  defendant  should  pay  the  price,  and  bring  his  action 
against  the  seller  for  any  defect  in  the  warranty  existing  at  the  time  of  the  sale. 
He  took  it  to  be  clear  law,  that  if  a  person  purchases  a  horse  which  is  warrant- 
ed, and  it  afterwards  turn  out  that  the  horse  was  unsound  at  the  time  of  the 
warranty,  the  buyer  might,  if  he  pleased,  keep  the  horse,  and  bring  an  action 
on  the  warranty,  in  which  he  would  have  a  right  to  recover  the  difference  be- 
tween the  value  of  a  sound  horse,  and  one  with  such  defects  as  existed  at  the 
time  of  the  warranty  ;  or  he  might  return  the  horse,  and  bring  an  action  to  re- 
cover the  full  money  paid  ;  but  in  the  latter  case,  the  seller  had  a  right  to  expect 
that  the  horse  should  be  returned  in  the  same  state  he  was  when  sold,  and  not  by 
any  means  diminished  in  value  :  for  his  lordship  said,  "  if  a  person  keeps  a  war- 
ranted article  for  any  length  of  time  after  discovering  its  defects,  and  when  he 
returns  it,  it  is  in  a  worse  state  than  it  would  have  been  if  returned  immediately 
after  such  discovery,  I  think  the  party  can  have  no  defence  to  an  action  for  the 
price  of  the  article  on  the  ground  of  noncompliance  with  the  warranty ;  but 
must  be  left  to  his  action  on  the  warranty,  to  recover  the  difference  in  the  value 
of  the  article  warranted,   and  its  actual  value  when   sold."     And  his    lordship 


>129 


(w)  3  Esp.  Rep.  82. 


Chap.  ].]         Of  Sale  and  Return  of  Goods,  129 

concluded  with  saying,  "that  if  the  jury  thought,  that  if  any  future  purchaser 
was  to  be  told  that  the  horse  had  been  blistered  and  doctored,  it  would  diminish 
its  value  in  the  estimation  of  such  purchaser,  they  should  find  a  verdict  for  the 
plaintiff;"  which  ihcy  accordingly  did,  for  forty-five  guineas,  the  price  agreed 
upon. 

Where  A.  and  B.  severally  employ  C.  to  sell  their  horses,  C.  sells  both  to 
D.  at  an  entire  price,  and  warrants  them  sound,  D.  cannot  sever  the  contract 
and  bring  an  action  on  the  warranty  against  A.,  in  respect  of  the  unsoundness 
of  A.'s  horse;  his  remedy  being  against  C.  alone. (a:) 

6.  OF  SALE  OR  RETURN  OF  GOODS. 

In  particular  trades  it  is  very  common  for  the  manufacturer  or  whole-sale  trad- 
er to  send  to  a  retail  dealer  different  articles  of  manufacture  upon  the    terms  of 
Sale  or  Return..     When  this  happens,  the  retail  dealer  should  notify  to  the  trad- 
er within   a  reasonable   time,  whether  he  intends   buying  them    or  not,  and  to 
act  accordingly  ;  for  if  the  goods  are  kept  an  unreasonable  length  of  time,  with- 
out any  notification,  the  retail  dealer  may  be  thereby   fixed  with  the    price   of 
them.  (79)  Thus,  in  the   case  of  Barley  v.  Gouldsmith,  (y)  which    was  an   ac- 
tion  for  goods  sold  and  delivered.     The  goods  were  delivered  on  the  terms  of 
sale  or  return,  in  *the  beginning  of  the  year  1789,  and  consisted  of  waistcoats 
made  in  England,  exported  to  France,   there  embroidered    and  imported    again 
into   England.     But  the  defendant  had  never  returned  or  offered  to  return  them. 
Lord  Kenyon  Ch.  J.  said,   "  that  no  certain  time  being   mentioned  for  the  re- 
turn of  the  goods,  the  jury  should  consider  whether  a  reasonable  time  had  elaps- 
ed for    the  return  according  to  the  usual  course  of  dealing  in  that  trade.     His 
lordship  was  inclined  to  think  there  had  ;  and  if  the  jury  should  be  of  that  opin- 
ion, he  should  consider  them  as  goods  sold   and  delivered."     But  the  jury  gave 


(x)   Symonds    v.     Carr,     1     Campb.     361.  (y)  Peake's  Cas.  Ni.  Pri.  56. 

Et  vid.  Hort  v.  Dixon,  Selw.  Ni.  Pri.  101. 


(79)  A.  purchased  of  B.  a  negro  slave,  for  the  price  of  which  he  save  his  bill  at  5  months  ; 
and  it  was  agreed  between  the  parties,  that  if  A.  or  his  wife  should  not  like  the  slave,  b'. 
would  receive  him  back  at  any  time  within  5  months  and  refund  the  purchase  money ;  A. 
offered  to  return  the  slave  within  the  5  months,  and  B.  refused  to  receive  him,  or  to  refund 
the  money.  A.,  having  paid  the  bill,  brought  an  action  against  B.  to  recover  back  the  pur- 
chase money  ;  it  was  held,  that  he  was  entitled  to  recover  the  amount,  as  damages  for  the 
non-performance  of  the  agreement.  Giles  v.  Bradley,  2  J.  C.  253.  So,  after  the  sale  of  a 
chattel  had  been  completed,  it  was  agreed,  that  the  vendee  might,  within  a  reasonable 
time,  return  it,  and  receive  back  the  price,  if  returned  in  as  good  condition  as  it  was  at  tho 
time  of  the  sale  :  and  the  vendee  afterwards  rescinded  the  contract  and  returned  the  chat- 
tel; and  the  vendor  received  it  without  any  objection,  and  returned  the  purchase  money  ;  it 
was  held,  that  the  vendor  was  concluded  by  his  own  act  from  maintaining  an  action  against 
the  vendee,  for  any  deterioration  of  the  chattel  while  in  his  possession,  not  arising  from  any 
secret  injury  ;  because,  he  thereby  rescinded  the  contract  of  sale  unconditionally.  Lord  v. 
Kenny,  13  J.  R.  219.  Upon  the  sale  of  a  chattel,  with  warranty  of  its  soundness,  or  where, 
by  the  special  terms  of  the  contract,  the  vendee  is  at  liberty  to  return  the  article,  an  offer  to 
return  it  is  equivalent  to  an  acceptance  by  the  vendor ;  and  the  contract  being  thereby  rescind- 
ed, it  is  a  good  defence  against  an  action  for  the  purchase  money,  and  will  also  entitle  the 
vendee  to  recover  it  back,  if  it  has  been  paid.     Thornton  v.  Wynn,  12  Wheat.  183. 

J     17  *130 


130  Of  Sale  and  Exchange  of  Goods.      [Part  II. 

no  verdict,  as  the  plaintiff*  consented  to  a  nonsuit  upon  another  ground,  wholly 
irrelevant  from  the  present  subject. 

When  goods  are  sent  upon  sale  or  return,   and  the  retail  dealer  becomes 
bankrupt  whilst  they  remain  in  his  possession,  such  goods  pass  to  his  assignees 
under  the  commission,  even  though  no  notification  was  made  by  the  bankrupt 
prior  to  his  bankruptcy,  whether  he  would  keep  or  return  them.(^) 

7.  OF  SALE  AND  EXCHANGE. 

Contracts  of  sale  and  exchange  differ  from  ordinary  sales  in  this  respect, 
namely,  that  in  the  one  case  money  is  given  as  the  price  of  the  goods  sold,  and 
in  the  other,  one  commodity  is  bartered  in  exchange  for  another.  Both  are 
founded  on  a  valuable  consideration,  and  are  governed  by  the  same  rules  of 
law.(80)  But  in  contracts  of  sale  and  exchange,  the  law  will  not  raise  any 
implied  warranty.(a)  And  if  upon  a  sale  and  exchange  of  goods,  the  goods 
are  delivered  to  the  parties  respectively,  the  property  in  the  goods  so  delivered 
remains  with  the  possessors.  Thus,  in  the  case  of  Emanuel  v.  Dane,(b) 
which  was  an  action  of  trover  for  a  watch;  and  the  plaintiff's  case 
was,  that  he  had  exchanged  this  watch  with  the  defendant  for  a  pair  of 
candlesticks,  warranted  to  be  silver,  which  turned  out  to  be  base  metal ;  and 
that  the  defendant,  on  the  candlesticks  being  returned  to  him,  had  refused  to 
deliver  up  the  watch.  Lord  Ellenborough  Ch.  J.  said,  "  Unless  the  contract 
be  rescinded  this  action  cannot  be  maintained ;  the  watch  remains  the  property 
of  the  defendant,  though  the  plaintiff  be  entitled  to  a  compensation  in  damages 
for  a  breach  of  the  warranty  that  the  candlesticks  were  of  silver.  I  cannot 
try  a  question  of  warranty  in  an  action  of  trover.  The  contract  should  be  de- 
clared upon  specially." 

Where  an  agreement  is  made  between  two  traders  to  exchange  goods  for 
goods,  and  a  balance  is  struck  between  them;  such  balance  is  to  be  *paid  in 
money,  otherwise  there  could  be  no  end  to  the  dealings,  (e)  So,  where  two 
tradesmen  agree  to  deal  with  each  other  by  way  of  barter,  if  one  refuses  to  ac- 
count, the  other  may  arrest  for  the  whole  value  of  the  goods  which  he  has  fur- 
nished to  the  party  refusing.(rf) 

8.  OF  BARGAIN  AND  SALE  OF  GOODS  WITHOUT  DELIVERY. 
A  bargain  and  sale  is  said  to  be  where  a  man  makes  a  contract  with  another 

(i)    Livesay    v.  Hood,     2.  Campb.    Rep.         (6)  3  Campb.  299. 

83.  (c)  Ingram  v.  Shirley,  1  Stark.  185. 

(a)  La  Neuville  v.  Nours6,  3 Campb. 351.         (il)  Germainx.  Burroxcs,  5  Taunt.  259. 

et  ante,  115.  \ 

(80)  If,  in  the  exchange  of  goods,  one  party  defraud  the  other,  who,  for  that  reason,  elects 
to  rescind  the  contract,  it  is  not  sufficient  for  the  injured  party  to  give  notice  of  his  election 
to  the  other,  and  merely  request  him  to  come  and  receive  his  goods  ;  but  he  must  return 
them  to  the  party  defrauding  him,  before  any  right  of  action  will  accrue  to  him.  Norton  v. 
Young,  3  Greenl.  30.  * 

*131 


Chap.  1.]  Of  a  Bargain  and  Sale  without  Delivery-      131 

for  the  sale  of  goods  or  chattels,  and  at  the  same  time  makes  the  sale  of 
them,  (e)  If  the  contract  be  executory,  it  amounts  to  au  agreement  ;  but  if  it 
be  executed  by  actual  sale,  this  is  a  bargain  and  sale  ;  and  where,  by  the  terms 
of  the  contract,  the  money  is  to  be  paid  before  the  delivery  of  the  goods,  or  if 
there  be  no  agreement  as  to  the  time  of  payment,  and  the  vendee  refuses  to  take 
away  or  accept  the  goods  ;  in  either  case  the  vendor  may  recover  the  price 
agreed  upon,  by  action  of  indebitatus  assumpsit  for  goods  bargained  and 
sold.  (/)  So,  if  goods  are  bought  at  a  public  sale,  the  owner  may  recover 
the  price  at  which  they  were  sold,  in  the  like  form  of  action,  even  though  the 
goods  are  resold  in  consequence  of  the  buyer's  default,  in  not  fetching  them 
away  within  the  time  limited  by  the  conditions  of  sale.  Thus,  in  the  case  of 
Mertens  v.  Aclcock,  (g)  which  was  an  action  for  special  damages  for  not  taking 
away  goods  bought  at  an  auction,  and  for  goods  bargained  and  sold.  The 
goods  were  resold  under  the  usual  printed  conditions.  The  counsel  for  the 
defendant  objected  that  the  plaintiff  could  not  recover  for  goods  bargained  and 
sold,  he  being  in  no  situation  to  deliver  the  goods  if  he  recovered  the  price  of 
them.  But  Lord  Ellenborough  Ch.  J.  ruled,  "  that  those  circumstances  did  not 
prevent  the  plaintiffs  right  of  recovering  ;  for  if  he  recovered  on  the  count  for 
goods  bargained  and  sold,  the  defendant  might  maintain  an  action  of  trover  for 
them.  As  soon  as  the  lot  was  knocked  down  to  him,  he  became  the  buyer ; 
they  were  goods  bargained  and  sold."  The  plaintiff  accordingly  recovered  a 
verdict  upon  the  count  for  goods  bargained  and  sold.  This  decision,  how- 
ever, was  doubted  by  Gibbs  Ch.  J.  in  a  similar  case,  of  Hagedornv.  Laing,  (?) 
where  he  said,  "  I  would  not  unnecessarily  differ  from  Lord  Ellenborough  ; 
but  I  much  doubt  whether  this  can  in  any  manner  be  considered  as  a  case  of 
goods  bargained  and  sold :  here  is  a  particular  contract,  that  on  paying  for  the 
goods,  and  taking  them  away  at  a  certain  time,  the  purchaser  shall  have  the 
goods  :  but  if  it  be  a  contract  of  bargain  and  sale,  it  certainly  is  subject  to  a 
condition ;  for  if  the  purchaser  do  not  take  the  goods  *\vithin  a  certain  time,  the 
seller  may,  by  the  terms,  rescind  the  cotract ;  he  may  resell ;  and  if  he  resells, 
I  think  he  shews  his  dissent  to  the  contract  of  bargain  and  sale."  (81) 

(e)  Com.  Dig.  tit.  Bargain  and  Sale,  A.  Ashlin,  3  Campb.  426.  I  Salk.  113.  et  ante, 

(/)  Slade's  case,  4  Go.  93.  Shep.  Touch.  39. 

225.  Skin.  647.  Peake's  Cas.  N.  P.  41.  (i)  6  Taunt.  165, 
Or)  4  Esp.   Rep.   251.  Et  vid.    Greaves  v. 

(81)  Where  R.  G.  agreed  with  the  managers  of  a  lottery  to  take  2,500  tickets,  giving  ap- 
proved security  on  the  delivery  of  the  tickets,  which  were  specified  in  a  schedule,  and  in 
books  of  100  tickets  each,  thirteen  of  which  were  received  and  paid  for  by  him  ;  and  the 
remaining  twelve  books  were  superscribed  by  him,  with  his  name  in  his  proper  handwriting, 
and  indorsed  by  the  agent  of  the  managers,  "  Purchased  and  to  be  taken  by  Robert  Gray," 
and  on  the  envelope  covering  the  whole,  "Robert  Gray,  12  books"  ;  on  the  second  day's 
drawing  of  the  lottery,  one  of  the  tickets  contained  in  the  12  books,  was  drawn  to  a  prize  of 
20,000  dollars  :  and  between  the  third  and  fourth  day's  drawing,  R.  G.  tendered  sufficient 
security,  and  demanded  the  last  1,200  tickets,  and  the  managers  refused  to  deliver  the  prize 
ticket ;  it  was  held,  that  the  property  of  the  tickets  was  changed  when  the  selection  was 
made  and  assented  to,  and  that  they  remained  in  the  possession  of  the  vendors  merely  as 
collateral  security,  and  that  the  vendee  was  entitled  to  recover  the  amount  of  the  prize. 
Thompson  v.  Gray,  1  Wheat..  75.  See  Coit  v.  Houston,  3  J.  G.  243,  254.  Penniman  v.  Harts- 
horn, 13  Maes,  Rep,  87, 

*132 


132       Of  the  Sale  of  Goods  by  Public  Auction.  [Part  II. 

It  has  also  been  held,  that  such  a  form  of  action  will  lie  even  though  the 
goods  have  been  stopped  in  transitu  by  the  seller,  provided  the  seller  is  ready- 
to  deliver  them  on  the  price  being  paid.  (A) 

9.    OF   THE   SALE    OF    GOODS    BY   PUBLIC    AUCTION. 

When  goods  are  put  up  to  sale  by  public  auction,  and  a  bidding  is  made,  the 
bidder  may  retract  his  bidding  at  any  time  before  the  lot  is  actually  knocked 
down  to  him  by  the  auctioneer.  Tims,  in  the  case  of  Payne  v.  Cave,  (I)  which 
was  an  action  of  assumpsit  for  not  paying  a  deposit  upon  a  lot  of  goods  sold 
at  an  auction  ;  the  circumstances  of  the  case  were  as  follow,  the  goods  were  put 
up  in  one  lot  at  an  auction  ;  there  were  several  bidders,  of  whom  the  defendant 
was  the  last,  who  bid  40/. ;  the  auctioneer  dwelt  on  the  bidding,  on  which  the 
defendant  said,  "  Why  do  you  dwell  1  You  will  not  get  more."  The  auction- 
eer said,  he  was  informed  the  worm  weighed  at  least  IdOOcwt.,  and  was  worth 
more  than  401. ;  the  defendant  then  asked  him,  whether  he  would  warrant  it  to 
weigh  so  much,  and  receiving  an  answer  in  the  negative,  he  then  declared  he 
would  not  take  it,  and  refused  to  pay  for  it.  It  was  re-sold  on  a  subsequent 
day's  sale  for  30/.  ;  and  the  action  was  brought  for  the  difference.  Lord  Ken- 
yon  Ch.  J.,  before  whom  the  cause  was  tried,  being  of  opinion,  on  this  state- 
ment of  the  case,  that  the  defendant  was  at  liberty  to  withdraw  his  bidding  any 
time  before  the  hammer  was  knocked  down,  nonsuited  the  plaintiff.  A  motion, 
however,  was  made  to  the  Court  of  King's  Bench  for  a  rule  to  set  aside  this  non- 
suit, on  the  ground  that  the  bidder  was  bound,  by  the  conditions  of  the  sale,  to 
abide  by  the  bidding,  and  could  not  ietract.  But  the  Court  refused  the  rule,  and 
said,  "  The  auctioneer  is  the  agent  of  the  vendor,  and  the  assent  of  both  par- 
ties is  necessary  to  make  the  contract  binding  ;  that  is  signified  on  the  part  of  the 
seller  by  knocking  down  the  hammer,  which  was  not  done  here  till  the  defen- 
dant had  retracted.  An  auction  is  not  unaptly  called  locus  pecnitentice.  Every 
bidding  is  nothing  more  than  an  offer  on  one  side,  which  is  not  binding  on  ei- 
ther side  till  it  is  assented  to  ;  but,  according  to  what  is  now  contended  for,  one 
party  would  be  bound  by  the  offer  and  one  not,  which  can  never  be  allowed.'' 

If  goods  are  fairly  sold  at  a  public  auction,  and  the  buyer  refuses  to  accept 
and  pay  for  them,  he  is  liable  to  an  action  of  damages  for  breach  of  his  con- 
tract :  but  if  the  owner  of  the  goods  secretly  employs  puffers  *to  bid  for  him 
at  the  sale,  it  is  a  fraud  on  the  real  bidders,  and  the  highest  bidder  cannot  be 
compelled  to  complete  the  contract.  This  was  settled  in  the  case  of  Howard 
v.  Castle,  (m)  which  was  an  action  of  assumpsit ;  the  declaration  stated,  "  that 
the  plaintiff  was  possessed  of  a  leasehold  estate,  which,  on  the  23d  of  March, 
1795,  she  put  up  to  sale  by  auction  on  certain  conditions,  among  which  were 
the  following.;  that  the  highest  bidder  should  be  the  purchaser  ;  that  the  pur- 

(k)  Kymer  v.   Suwercropp,  1  Campb.  Rep.  Christie,  Covvp.  395.  S.  P.  But  sec  Sugden's 

109.  Vendor  and  purchaser,  ch.  1.   Fonb.   Treat. 

(/)  3  Term  Rep.  148.  Eq.  vol.  i.  227.  n.  x.  and  Bramley  v.  Alt,  3 

(hi)  G  Term  Rip.  642.     Vide  Bcxwell    v.  Vcs.  jun.  627.  contra. 


ft 


133 


Chap.  1.]  Of  the  Sale  of  Goods  by  Public  Auction.      133 

chaser  should,  at  the  sale,  pay  25/.  per  cent,  into  the  hands  of  the  auctioneer, 
and  sign  an  agreement  to  pay  the  remainder  before  the  31st  of  March  ;  and 
that  if  the  purchaser  should  neglect  to  comply  with  the  conditions,  the  deposit 
money  should  be  forfeited  ;  the  plaintiff  should  be  at  liberty  to  resell  the  prem- 
ises ;  and  the  defendant  should  make  good  any  deficiencies  attending  the  re- 
sale, with  costs.  It  then  stated  that  the  defendant  was  the  highest  bidder,  at 
the  sum  of  357/.,  yet  that  he  had  refused  to  pay  the  deposit,  or  to  complete 
the  purchase;  that  afterwards  on  the  10th  of  April,  1795,  the  plaintiff"  again 
put  up  the  premises  to  sale  by  public  auction,  when  they  were  sold  for  273/.  ; 
that  the  deficiency,  together  with  the  costs  and  the  deposit  money,  which  the 
defendant  ought  to  have  paid  at  the  first  sale,  amounted  to  200/.  14,?.  ;  yet  that 
the  defendant  had  not  paid,  &c.  At  the  trial  it  appeared,  that  at  the  first  sale 
at  which  the  defendant  was  declared  the  purchaser,  there  was  no  other  real 
bidder,  but  that  all  the  other  bidders  were  puffers,  employed  by  the  plaintiff; 
that  the  defendant  on  discovering  this  refused  to  complete  the  contract  ; 
that  at  the  second  sale  there  was  one  real  bidder  of  the  name  of  Gander,  who 
offered  270/.  ;  and  that  at  that  sale  the  premises  were  bought  in  for  the  plain- 
tiff at  273/.  For  the  defendant,  it  was  objected,  on  the  authority  of  Bcxiccll 
v.  Christie,  Cowp.  395,  that,  as  all  the  other  bidders  at  the  first  auction  were 
puffers  employed  by  the  plaintiff,  the  whole  was  a  fraud  and  imposition 
on  the  defendant,  and  that  he  was  not  bound  to  complete  his  contract.  The 
jury  found  a  verdict  for  the  plaintiff;  but  upon  a  motion  to  set  aside  the  verdict 
and  to  enter  a  nonsuit,  the  Court  were  of  opinion  that  the  sale  was  fraudulent, 
and  that  no  action  could  be  maintained  ;  and  a  nonsuit  was  ordered  to  be 
entered.  And  Lord  Kenyan  Ch.  J.  said  ';  In  considering  the  nature  of  the 
plaintiff's  demand,  it  becomes  necessary  to  enquire  what  brought  the  different 
persons  together  at  the  auction,  and  on  what  terms  they  met  when  they  went 
there  to  bid.  The  plaintiff's  estate  was  advertised  to  be  sold  by  auction,  and 
one  of  the  conditions  of  the  sale  was,  that  the  highest  bidder  should  become  the 
purchaser :  it  was  to  be  presumed  also,  that  no  fraud  was  to  be  practised  on 
those  who  were  present,  to  induce  them  to  bid  more  than  they  were  inclined  to 
*offer.  At  this  sale  the  defendant  bid  a  certain  sum,  and  afterwards  refused 
to  complete  his  purchase.  Now,  if  there  were  no  fraud  in  this  transaction,  the 
plaintiff  has  a  right  to  call  on  the  defendant  in  a  court  of  justice  for  a  satis- 
faction for  nonperformance  of  the  agreement :  but  it  appeared  at  the  trial,  that 
the  whole  transaction  was  bottomed  in  fraud  ;  it  was  fraud  from  the  begin- 
ning to  the  end ;  the  parties  did  not  meet  on  equal  terms  ;  several  other 
persons  besides  the  defendant  bid,  who  represented  themselves  as  em- 
barking on  their  own  judgment ;  but  it  afterwards  turned  out  that  this 
was  false,  and  that  this  was  an  imposition  practised  by  the  plaintiff 
on  the  defendant ;  for  all  those  other  persons  were  authorized  by  the  plaintiff 
to  bid  for  him.  I  will  not  go  into  the  general  reasoning  on  this  subject,  be- 
cause it  is  very  ably  stated  by  Lord  Mansfield,  in  the  case  alluded  to.  Only 
part  of  that  reasoning  has  now  been  adverted  to  by  the  plaintiff's  counsel ;  but 

*134 


134         Of  the  Sale  of  Goods  by  Public  Auction.  [Part  II. 

the  rest  of  it  is  applicable  to  this  case.  The  whole  of  that  reasoning  is  found- 
ed on  the  noblest  principles  of  morality  and  justice,  principles  that  are  calcu- 
lated to  preserve  honesty  between  man  and  man.  The  acts  of  parliament  that 
have  been  referred  to,  did  not  intend  to  interfere  with  this  point,  but  to  leave 
the  civil  rights  of  mankind  to  be  judged  of  as  they  were  before.  In  the  case 
cited,  Lord  Mansfield  mentioned  an  instance  in  which  the  owner  may  legally 
and  fairly  bid  at  the  auction,  namely,  where,  before  the  bidding  begins,  he 
gives  public  notice  of  his  intention  ;  and  in  such  a  case  no  duty  is  to  be  paid 
under  the  acts  of  parliament  that  have  been  referred  to.  The  circumstance  of 
puffers  bidding  at  auctions  has  been  always  complained  of;  if  the  first  case  of 
this  kind  had  been  tried  before  me,  perhaps  I  should  have  hesitated  a  little  be- 
fore I  determined  it ;  but  Lord  Mansfield's  comprehensive  mind  saw  it  in  its 
true  colours,  as  founded  in  fraud  ;  he  met  the  question  fairly,  and  made  a 
precedent  which  I  am  happy  to  follow." 

If  a  party  at  a  public  sale  become  the  highest  bidder  by  any  improper  con- 
duct or  representation,  which  has  the  effect  of 'deterring  others  from  bidding, 
the  sale  is  void  as  against  such  party.  Thus,  in  the  case  of  Fuller  v.  A bra- 
hams,{n)  where  it  was  proved,  that  a  barge  being  put  up  for  sale  by  auction,  the 
plaintiff  addressed  the  company  present,  saying,  he  had  a  claim  against  the  late 
owner,  by  whom  he  said  he  had  been  ill-used  ;  whereupon  no  one  offered  to  bid 
against  the  plaintiff ;  but  the  auctioneer  refusing  to  knock  down  the  barge  upon 
the  plaintiff's  single  bidding,  a  friend  of  the  plaintiff's  then  bid  a  guinea  more ; 
and  the  plaintiff  then  made  a  second  and  higher  bidding,  amounting,  however, 
to  only  one-fourth  of  the  prime  cost  of  the  barge.  The  auctioneer  being  indem- 
nified by  the  vendor,  who  had  taken  the  barge  in  execution,  refused  to  deliver 
the  barge  to  the  plaintiff.  The  Court  were  clearly  *of  opinion,  that  a  sale 
under  these  circumstances  could  not  be  supported. 

We  have  already  seen,(o)  that  an  auctioneer  is  considered  in  law  as  an 
agent  both  for  the  buyer  and  the  seller.  But  if  he  sells  goods,  and  do  not  dis- 
close his  principal,  he  is  liable  to  an  action  at  the  suit  of  the  purchaser  for  the 
completion  of  the  contract  of  sale,  (p)  Where  several  distinct  lots  are  sold  at 
the  same  auction  to  the  same  person,  each  lot  is  a  distinct  contract,  (q)  And 
an  auctioneer  has  such  a  special  property  in  goods  sold  by  him,  as  will  enable 
him  to  maintain  an  action  for  the  price  of  the  goods  against  the  vendee,  even 
though  the  goods  were  sold  at  the  house  of  the  auctioneer's  employer,  and 
were  known  to  be  his  property.(r)  But  if  an  auctioneer  sell  the  goods  of  B. 
as  the  goods  of  A.  and  the  buyer  pay  the  price  to  A.  the  auctioneer  cannot  re- 
cover the  price  from  the  buyer,  (s)  Where  no  payment,  however,  is  made  by 
the  buyer,  and  the  auctioneer  bring  an  action  against  him  for  the  price  of  the 
goods,  the  buyer  may  set  off  a  debt  due  from  A.  to  him.(<)  (82) 


(n)  3  Brod.  &  Bing.  116.  (r)   Williams  v.  Millington,  1  H.  Bl.  81. 

(o)  Ante,  103.  (s)  Coppinv.  Walker,  7  Taunt.  237. 

(;>)  Hanson  v.  Roberdeau,  Peake,  120.  (t)   Coppin  v.   Craig,  Ibid.  243. 

q)  Emerson  v.  Meelis,    2  Taunt.  38. 


I 


(82)  An  action  may  be  maintained  by  a  factor,  for  the  price  of  goods  by  him  eold  ;  and 
»135 


Chap.  1.]   Of  the  Sale  of  Goods  by  Public  Auction.     135 

It  was  also  noticed  in  a  former  part  of  this  chapter,  (m)  that  a  clerk  of 
an  auctioneer  is  not  authorized  to  act  in  the  absence  of  his  master  as  agent 
for  the  vendor,  unless  the  vendor  empowers  him  so  to  do.  And  the  authority 
of  an  auctioneer,  as  agent,  is  put  an  end  to  by  the  completion  of  the  sale  ;  and 
nothing  done  by  him  afterwards  relative  to  the  subject-matter  of  it,  will  bind 
his  principal.(u)  So,  verbal  declarations  made  by  the  auctioneer  contrary  to 
the  printed  conditions  of  sale,  are  of  no  validity,  and  cannot  be  admitted  in 
evidence  to  contradict  the  printed  conditions  ;(w)  for  the  printed  conditions  of 
sales  by  auction  are  the  terms  of  the  contract  between  the  buyer  and  seller,  and 
are  in  all  cases  binding  on  the  parties  ;  and  they  are  sufficiently  made  known 
to  the  bidders  by  being  posted  up  in  the  public  sale  room  under  the  auctioneer's 

box.  (x) 

The  sales  of  the  East  India  Company  being  subject  to  a  regulation  that  any 
buyer  not  making  good  the  remainder  of  his  purchase-money  on  or  before  the 
day  limited  for  such  payment,  shall  forfeit  the  deposit,  "  and  shall  be  rendered 
incapable  of  buying  again  at  any  future  sale  until  he  shall  have  given  satisfac- 
tion to  the  court  of  directors."  The  term  "  satisfaction"  was  held  to  mean 
pecuniary  compensation  for  the  non-performance  of  his  agreement  to  pay  on  the 
appointed  day  ;(y)  and  that  a  buyer  having  made  default  on  the  day,  but  after- 
wards, within  a  further  time  given  to  him  by  the  company,  paid  the  remainder 
of  the  *purchase-money,  with  interest,  might  maintain  an  action  against  the 
company  for  refusing  to  allow  him  to  become  a  bidder  at  their  sales  ;  such 
sales  being  by  9  &  10  W.  3.  c.  44.  s.  69.  declared  to  be  public  and  open 
sales. 

Where  the  conditions  of  sale  by  auction  were,  that  the  goods  should  be  clear- 
ed away  at  the  expence  of  the  buyer  in  14  days,  the  price  to  be  paid  on  or 
before  delivery  ;  and  that  if  any  lots  remained  uncleared  after  the  time  allow- 
ed, the  deposit-money  should  be  forfeited,  the  goods  resold,  and  the  loss  on 
the  resale  made  good  by  the  purchaser.  The  broker  gave  a  bought  note,  which 
allowed  14  days  for  receiving  and  delivery.  And  it  was  held,(z)  that  the  buyer 
only  had  14  days  to  take  away  the  goods  and  that  the  seller  was  bound  to 
deliver  them   immediately. 

By  the  statutes  17  Geo.  3.  c.  50.  s.  10.,  and  19  Geo.  3.  c.  56.  s.  12.,  it  is 
enacted,  that  if  the  owner  of  any  estate,  goods,  or  effects,  put  up  to  auction, 


(it)  Ant",  103.  (y)  Eagleton  v.   The  East  India     Company, 

(v)   Seton  v.  Slade,  7  Ves.  jun.  276.  3  Bos.  &  Pul.  55. 
(w)   Gxtnnis  v.  ErhaH,  1  H.   Bla.  2S9.  (z)  Ante,   109. 

(x)    Mesnard  v.  Mdridge,  3  Esp.  271. 


also,  the  principal  may  take  the  collection  into  his  own  hands,  and  sue  in  his  own  name. 
Girard  v.  Taggart,  5  Serg.  &  R.  27.  So,  where  goods  have  heen  sold  hy  a  licensed  auction- 
eer, the  principal  may  maintain  an  action  in  his  own  name  against  the  purchaser,  whether 
the  action  be  brought  for  the  price  of  the  goods,  or  for  damages  for  refusing  to  take  and  pay 
for  them.  Id.  p.  19.  By  this  decision,  the  case  of  Willing  v.  Rowland,  cited  4  Dall.  106,  in 
note,  and  also  in  3  Yeates,  342,  was  overruled.  It  seems,  that  the  principal  has  no  power 
to  control  the  avails  of  sales  at  auction,  as  to  the  amount  of  duties,  and  the  commissions  of 
the  auctioneer.     Girard  v.  Taggart,  5  Serg.  &  R.  29,  30. 

05  fa  #136 


136  Of  the  Delivery  of  Goods  Sold.         [Part  II. 

shall  become  the  purchaser  by  himself  or  his  agent,  without  fraud,  the  commis- 
sioners of  Excise,  6fc.  shall  be  authorized  to  make  an  allowance  to  such  owner 
of  the  duties  arising  on  such  biddings,  provided  notice  be  given  to  the  auctioneer 
before  the  bidding,  both  by  the  owner  and  the  agent,  of  the  appointment  of 
the  latter  ;  and  provided  such  notice  be  verified  on  the  oath  of  the  auctioneer,  ■ 
as  well  as  the  fairness  of  the  transaction  to  the  best  of  his  knowledge  and 
belief.  And  by  statute  28  Geo.  3.  c.  37.  s.  20.,  the  notice  to  the  auctioneer  is 
required  to  be  in  writing  ;  but  by  42  Geo.  3.  c.  93.,  a  notice  by  the  steward 
or  known  agent  of  the  owner  is  sufficient.  And  by  19  Geo.  3.  c.  56.  s.  11.  if 
any  sale  by  auction  of  estates  or  goods  shall  be  rendered  void  by  the  person  for 
whose  benefit  such  estate  or  goods  were  sold,  having  no  title,  the  Commis- 
sioners of  Excise,  or  Justices  of  Peace,  are  authorized  to  relieve  the  party  from 
their  payments. (a) 

10.  OF  THE  ACTUAL  OR  SYMBOLICAL  DELIVERY  OF  GOODS  SOLD, 
EITHER  TO  THE  VENDEE  PERSONALLY,  OR  AT  HIS  PREMISES,  OR 
TO  A  PARTICULAR  CARRIER,  WHARF,  OR  OTHER  PLACE;  AND  AT 
WHOSE  RISK  THEY  ARE  WHILST  IN  THEIR  TRANSIT ;  AND  OF  THE 
VENDOR'S  RIGHT  TO  RECOVER  THE  PRICE. 

Upon  a  sale  of  goods,  the  vendee  either  takes  them  away  himself,  or  sends 
for  them  at  his  own  expense  ;  or  the  vendor  either  delivers  them  to  the  ven- 
dee's premises,  or  to  some  particular  carrier,  or  wharf,  or  other  place  either 
agreed  upon,  or  according  to  the  known  and  general  usage  of  trade(83)  and  the 
expence  and  risk  of  the  conveyance  is  usually  borne  by  the  vendee.  There- 
fore, if  a  person  orders  goods  of  a  *trader  living  at  a  distance  and  directs 
that  they  shall  be  sent  to  him  by  a  carrier  or  other  conveyance,  without  nam- 
ing any  one  in  particular,  a  delivery  of  the  goods  to  a  known  carrier,  or  trading 
vessel  going  either  to  the  town  or  nearest  place  to  where  the  vendee  resides 
will,  in  effect,  amount  to  a  delivery  to  the  vendee,  in  whom  the  property  is  im- 
mediately vested  ;(84)  and  he  must  stand  all  risk  of  conveyance  :  and  he  alone 

(a)  See  51  Geo.  3.  c.  95.  s.  1. 


(83)  An  offer  or  readiness  to  deliver  goods,  may  be  equivalent  to  an  actual  delivery  :  As 
where  A.  being  indebted  to  B.  by  a  promissory  note,  for  1167  dollars,  it  was  agreed,  in  writ- 
ing, between  them,  that  A.  should  deliver  to  B.  so  much  coal  at  10  dollars  per  chaldron,  as 
would  amount  to  the  sum  due  on  the  note  ;  but  no  time  or  place  for  the  delivery,  was  stipu- 
lated. A.  had  coal  in  his  yard,  of  the  requisite  quantity  and  quality  ;  and  immediately  after 
the  time  of  the  agreement,  and  at  other  times,  tendered  to  B.  the  coal  in  satisfaction  of  the 
note;  B.  made  no  objection  to  the  place  or  mode  of  delivery,  but  said,  atone  time,  he  would 
send  and  take  them  away ;  and  at  another,  that  he  was  not  ready  to  receive  them  ;  and 
finally,  neglected  to  take  them.  In  an  action,  afterwards  brought  by  B.  against  A.,  to  reco- 
ver the  amount  of  the  note;  it  was  held,  that  the  agreement  for  the  delivery  of  the  coal,  was 
valid  ;  and  that  the  tender  of  the  coal  by  A.,  amounted  to  a  delivery,  and  was  a  sufficient 
bar  to  the  plaintiffs'  action.  Coit  v.  Houston,  3  J.  C.  243.  See  Babcock  v.  Stanley,  1 1  J.  R. 
178. 

(84)  An  actual  delivery  of  goods,  or  of  apart  of  them,  is  not  always  required  by  the  stat- 
ute of  frauds  ;  but  a  constructive  delivery  may  be  sufficient.  The  circumstances,  however, 
attending  the  transaction,  ought  to  be  so  strong  and  unequivocal,  as  to  leave  no  doubt  of 

*137~ 


Chap.  1.]     To  the  Vendee  or  to  a  Carrier,   <$c.  137 

can  maintain  an  action  for  any  injury  done,  or  other  accident  happening  to  the 
goods  in  their  transit,  (b)  And,  so  where  goods  are  sent  abroad,  the  property 
vests  in  the  consignee  from  the  time  they  are  shipped. (c)  The  only  exception  to 
the  purchaser's  right  over  the  goods  is,  that  the  vendor,  in  case  of  the  former 
becoming  insolvent,  may  stop  them  in  transitu. (<l)  And  the  vendee,  in  such 
case,  is  liable  to  pay  for  the  goods  upon  the  delivery  thereof  to  the  carrier.  Thus, 
in  the  case  of  Vale  v.  Bayle,(c)  which  was  an  action  of  assumpsit  for  goods 
sold  and  delivered.  And  at  the  trial,  a  letter  from  the  defendant  to  the  plaintiff 
was  produced,  containing  a  commission  to  the  plaintiff  for  the  goods  in  question, 
after  which  was  added  the  following  postscript ;  "  Pray  be  expeditious  in  send- 
ing them  ;  and  instead  of  letting  them  go  by  the  way  of  Bristol,  where  many 
things  you  have  sent  me  have  been  detained,  send  them  by  land-carriage." 
The  goods  were  delivered  to  the  book-keeper  of  the  Birmingham  carrier,  to  be 
sent  from  thence  by  way  of  Coventry,  to  the  defendant,  who  lived  at  Carmar- 
then ;  and  it  was  proved,  that  there  was  no  other  mode  of  conveyance  by  land- 
carriao-e  :  the  goods  were  lost  on  the  road.  The  Court  determined,  that  the 
delivery  of  the  goods  to  the  carrier  was  a  delivery  to  the  defendant  ;  and  that 
the  plaintiff  was  entitled  to  recover. 

So,  in  the  case  of  Cook  v.  Ludlow,(f)  which  was  also  an  action  of  assumpsit 
for  goods  sold  and  delivered,  and  goods  bargained  and  sold.     At  the  trial  a  ver- 


(6)  Vide  3  Bos.  &  Pul.  584.  Anderson  v.  (d)  Vide  post.  sect.  11. 

Hodgson,  5  Price,   Rep.  630.  2  Campb.  639.  (c)  Cowp.  294. 

2  Stark.   33.  Dawes  v.  Peck,  8  T.  R.  330.  (/)  2  New  Rep.  119. 

(c)  3  Campb.  36.   1  East,  Rep.  525. 

the  intention  of  the  parties  :  Thus,  in  the  case  of  Bailey  v.  Ogden,  3  J.  R.  399.,  it  was  held 
that  an  agreement  with  the  vendor  about  the  storage  of  the  goods,  and  the  delivery  by  him 
of  a  minute  of  the  import  entries,  to  the  agent  of  the  vendee,  were  not  sufficiently  certain  to 
amount  to  a  virtual  delivery,  or  to  afford  an  indicium  of  ownership.  But  if,  on  the  sale  of 
goods,  the  purchase  money  be  paid,  though  the  goods  are  suffered  to  remain  in  the  posses- 
sion of  the  vendor,  by  agreement  or  otherwise,  this  will  be  deemed  a  constructive  delivery. 
Hunn  v.  Boione,  2  Caines,  38.  Lansing  v.  Turner,  2  J.  R.  13.  So,  a  delivery  of  the  receipt 
of  the  storekeeper,  for  the  goods,  is  equivalent  to  a  delivery.  Wilkes  v.  Ferris,  5  J.  R.  335. 
So,  if  the  vendor  give  to  the  vendee,  an  order  on  a  third  person,  in  whose  possession  the 
goods  are,  for  their  delivery,  it  is  sufficient  to  take  the  case  out  of  the  statute  of  frauds. 
Hollingsworth  v.  Napier,  3  Caines,  182.  So,  on  a  sale  of  cattle,  no  earnest  being  paid,  nor 
any  memorandum  in  writing  made,  and  by  the  terms  of  the  sale,  the  cattle  were  to  remain 
in  the  possession  of  the  vendor,  at  the  risk  of  the  vendee,  until  he  should  call  for  them  ; 
and  the  vendee,  afterwards,  took  away  the  cattle,  without  giving  notice  to  the  vendor;  held, 
that  this  was  a  sufficient  delivery.  Vincent  v.  Germond,  11  J.  R.  283.  Where  A.  agreed  to 
purchase  a  quantity  of  cotton  bagging  of  B.,  who  informed  A.  that  it  remained  in  his,  B's., 
store  at  his  risk ;  whereupon  A.  took  away  some  part  of  the  bagging  from  the  store,  but 
afterwards  returned  it,  and  then  refused  to  receive  any  part  of  it  ;  it  was  held,  that  this  was 
a  sufficient  delivery  under  the  17th  section  of  the  statute  of  frauds.  Jackson  v.  Watts,  1 
M'Cord,  283.  And  where,  on  a  sale  of  land,  the  vendee  also  agreed  to  purchase  certain 
ponderous  articles  of  personal  property,  on  the  premises,  and  then  entered  into  the  posses- 
sion of  the  land,  the  articles  sold  still  remaining  on  the  land,  this  was  held  to  be  a  sufficient 
delivery.  De  Ridder  v.  M'Knight,  13  J.  R.  294.  But  where,  in  a  negotiation  for  the  sale  of 
a  pair  of  oxen,  the  purchaser  being  in  the  act  of  measuring  one  of  them,  said  he  would  give 
the  price  demanded  ;  to  which  the  other  party  replied,  that  he  might  have  them  ;  and  the 
vendor  then  borrowed  them  to  draw  a  load  to  his  home,  which  was  ten  miles  distant,  he  en- 
gaging to  put  them  to  no  other  use  ;  it  was  held,  that,  this  was  not  a  delivery  of  the  oxen. 
Phillips  v.  Hunnewell,  4  Greenl.  376.  See  further  on  this  subject,  Ludlow  v.  Hurd,  19  J.  R. 
218.     The  Venus,  8  Cranch,  253,  275. 

18 


137  Of  the  Delivery  of  Goods  Sold  [Part  II. 

diet  was  found  for  the  plaintiff,  damages  121.  6s.  6d.,  subject  to  the  opinion  of 
the  Court  of  Common  Pleas  upon  the   following  case :  "  On  the  23d    of  No- 
vember, 1802,   the  plaintiffs,  who  were  partners  and     agricultural-implement 
makers,  received  a  letter  by  the  post  from  the  defendant,   dated    Winterbourne 
Court  near  Bristol,  in  which  he   writes,  '  Three   or  four  years   since  I  had  a 
patent  chaff-cutter  of  you,  which  for  some  time  answered  my  purpose  very 
well,  but  it  is  latterly  got  out  of  order.     I  therefore  beg  the  favour  to  send  me 
another  as  soon  as  you  can  after  you  receive  this,  as  I  am  in  the  habit  of  using  a 
great  deal  of  chaff;  you  will  be  so  good  as  to  send  two  or  three  pair  of  knives. 
Any  conveyance  by  which  it  will  reach  Bristol  will  be  convenient  to  me,  as  I 
am  only  six  miles  from  it.     I  am,'  &c.     And  in  a  postscript  *to  that  letter  the 
defendant  writes  :  '  I  will  thank  you  for  a  line,  mentioning  when  you  send  the 
chaff-cutter,  that  I  may  know   when  to   expect   it,   and  where  to   send  for  it  ; 
and  the  sooner  I  can  get   it   the   more   agreeable,  as  I  am  much  inconvenienc- 
ed for  want  of  chaff.'       On    the    17th   December   following,  the  plaintiffs  sent 
the  chaff-cutter  and  knives  directed  to  the  defendant,  to  Symond's  Wharf,  Too- 
ley  Street,  at  which  wharf  some  of  the  Bristol  vessels  load,  and  received  from 
the  wharfingers  there  a  receipt   of  the  same  in   the   following  words  :    '  The 
Commence,  Cha.  Furquarson,  for  Bristol,  17th  December, received  Is.  6d.  J.  M.' 
On  the  same  17th  December  the  plaintiffs,   per  post,   advised  the  defendant  as 
follows  :  '  The  Commerce  sailed  from  the  port  of  London  in  January,  1803,  to 
Bristol,  and  arrived  there,  and  Pollard  and  Son  are  agents  to  all  Bristol  vessels 
laden  at   Symond's  Wharf  for  Bristol,  and  receive   all  the  goods  arriving  by 
them.'     From  the  month  of  January,   1803,  until  the  arrival  of  the  Commerce 
at  Bristol,  the  defendant  made  continual  inquiries  of  the  agents  and  consignees 
at  Bristol,  if  she  had  brought  the  chaff-cutter  in   question.     The  package  con- 
taining the  chaff-cutter  was   not  on   board  this   vessel   on   its  arrival  at  Bris- 
tol.    It  is  the  invariable  custom  at    Symond's   and  other  wharfs,  when  goods 
are  left  there  to  go  to  any  place  by  a  vessel,  to  give  a  receipt  for  the  goods  as 
going  by  the  vessel  then  loading,  without  regard  to  the  capability  of  the  vessel 
loading  to  contain  all  the  articles  for  which  receipts   are   given  ;  and  if  there 
are  more  goods  than  such  vessel  will  contain,  to  load  such  goods,  as  cannot  be 
conveyed  in  such  vessel,  on  board  the  next  vessel  in  turn  that  sails  from  the 
wharf.     The  Commercewas  the  vessel  loading  at  the   wharf  at  the   time  the 
chaff-cutter  was  delivered  to  the  wharfinger  ;  but  such   vessel  was  fully  loaded 
with  other  goods  in   turn,  which   came   there  before  the   chaff-cutter ;  so  that 
the  chaff-cutter,  and  other  goods   delivered   at  the  same  time,   to  be  sent  to 
Bristol,  were  left   out  of  that  vessel,   and  were  afterwards  by  the  wharfinger 
put  on  board  another  vessel  called   the  Nancy,   which   sailed  from    Symond's 
Wharf  on  the  13th  April,  1803,  for  Bristol,  and  duly  arrived  at  Pollard's  Wharf 
with  the  chaff-cutter  on   board.     The   chaff-cutter  was  landed  from  the  Nancy 
at  Pollard's  Wharf,  Bristol,  and  still  remains  there.     The  wharfinger  did  not 
give  notice  either  to  the  consignor  or  to  the  consignee  that  the  chaff-cutter  had 
not  been  taken  on  board  the  Commerce,  or  that  it  had  been  sent  by  any  other 
*I38 


Chap.  1.]      To  the  Vendee  or  to  a  Carrier,  fyc.  138 

ship.  No  correspondence  or  communication  whatever  passed  between  the 
parties  until  about  the  middle  of  the  following  year,  (1801,)  when  the  plaintiffs 
applied  for  payment  of  their  demand  ;  and  in  a  short  time  afterwards,  viz., 
on  the  20th  July,  in  that  year,  received  a  letter  from  the  defendant,  stating  that 
he  had  not  received  any  chaff-cutter  whatsoever,  though  he  had  made  repeated 
inquiries  at  Pollard's  Wharf  for  the  same,  from  the  receipt  of  the  plaintiffs' 
invoice,  until  the  arrival  of  the  Commerce  at  Bristol,  without  the  chaff-cutter, 
and  therefore  had  got  his  old  one  repaired.  On  the  22nd  of  November,  1804, 
the  plaintiffs  wrote  to  the  defendant,  stating  that  they  would  not  agree  to  sustain 
any  loss,  and  informing  him  that  by  inquiry  made  that  morning  at  SymonoVs 
Wharf,  they  found  that  the  chaff-cutter  was  not  forwarded  by  the  Commerce, 
but  was  put  on  board  the  Nancy,  which  left  London  on  the  13th  April,  1803  ; 
and  that  Pollard  and  Son,  on  the  quay  at  Bristol,  were  the  agents  for  that  ship. 
This  was  the  first  intimation  which  the  defendant  received  from  the  plaintiffs 
that  the  chaff-cutter  had  been  sent  by  the  Nancy.''''  The  Court,  after  argument, 
determined,  that  the  plaintiff  was  entitled  to  recover.  And  Heath  Just,  said 
"  I  do  not  consider  the  wharfinger  as  in  any  degree  the  agent  of  the  plaintiffs  ; 
he  is  the  agent  of  the  defendant  by  whose  order  and  direction  the  goods  were 
sent.  No  negligence  is  imputable  to  the  plaintiffs  in  not  inquiring  after  the 
goods.  They  had  no  notice  of  the  nondelivery  until  July,  1804.  Nothing  is 
more  common  than  in  the  case  of  waggons,  where  one  is  full,  to  send  the 
goods  by  the  next." (85) 

So,  a  delivery  of  goods  on.  board  a  ship,  according  to  order,  is  a  sufficient 
delivery  to  entitle  the  vendor  to  recover  for  goods  sold  and  delivered. (86) 
Thus,  in  the  case  of  Groning  v.  Mendham,(g)  which  was  an  action  for  goods 
sold  and  delivered  to  recover  the  price  of  50  casks  of  smalts,  which  had  been 
ordered  by  the  defendant  of  the  plaintiff's  house  at  Hamburgh  ;  the  plaintiff 
shipped  the  casks  at  Hamburgh  on  board  the  Euphrates,  Captain  Stanford, 
making  them  deliverable  by  the  bill  of  lading,  to  order  or  assigns ;  the  plaintiff 
at  the  same  time  advised  the  defendants  by  letter  of  the  shipment,  and  inclosed 
the  bill  of  lading  indorsed,  together  with  an  invoice,  and  valued  upon  him  by 
bill  at  two  months,  for  531/.  \0s.  On  the  arrival  of  the  ship  in  the  river,  after 
she  was  reported  at  the  custom-house,  the  defendant  produced  the  bill  of  lading 
to  the  captain,  and  demanded  a  delivery  of  the  goods,  tendering  him  the  freight 
and  charges ;  but  the  captain  withheld  the   goods  in  consequence  of  the  defen- 


(«•)   5  Maule  &  Sehv.  189. 


(85)  Where  the  plaintiffs  contracted  to  deliver  to  the  defendants,  all  the  herring  which 
they  should  take  in  their  net,  during  the  season  ;  the  delivery  to  be  made  at  the  Fly,  or  at 
the  dock  at  Catskill ;  the  plaintiffs  caught  a  quantity  of  fish  at  the  Fly,  and  the  defendants 
not  being  there  to  receive  them,  they  were  carried  to  the  dock  at  Catskill,  and  there  kept 
until  they  were  spoiled  ;  but  no  notice  was  given  to  the  defendants  of  the  fish  being  there. 
In  an  action  to  recover  the  price  of  the  fish,  it  was  resolved,  that  as  the  place  of  delivery 
was  at  the  option  of  the  plaintiffs,  they  were  bound  to  give  notice  to  the  defendants  of  such 
place,  and  of  the  time  when  they  would  be  ready  to  be  delivered  ;  and  as  this  notice  was 
not  given,  the  plaintiff's  ought  to  sustain  the  loss.     Rogers  v.  Van  Hoesen,  12  J.  R.  221. 

(86)  See  Clemson  v.  Davidson,  5  Binn.  392.  S.  C.     4  Binn.  405. 

*139 


139 


Of  the  Delivery  of  Goods  Sold         [Part  II. 


dant's  having  refused  to  accept  the  bill  ;  the  defendant  thereupon  brought  tro- 
ver against  the  captain,  and  recovered.  Under  these  circumstances,  the  Court 
determined,  that  there  was  a  sufficient  delivery.  And  Holroyd  Just,  said,  "  I 
am  of  opinion  in  this  case,  that  the  defendant,  by  bringing  trover  against  the 
captain,  has  affirmed  the  delivery  to  himself;  the  delivery  on  board  the  ship 
beino-  a  complete  delivery,  he  brings  trover,  the  form  of  which  action  required 
him  to  state  that  he  was  possessed  of  the  goods,  and  that  the  captain  wrong- 
fully took  them  out  of  his  possession  ;  and  the  property  in  the  goods  is  the 
very  gist  of  the  action.  Having  thus  brought  trover,  in  which  he  could  not 
have  recovered  unless  the  goods  were  proved  to  be  his  pioperty,  it  seems  that 
he  cannot  now  say  that  they  were  not  delivered  to  him." 

*  Where  goods  above  the  value  of  five  pounds  are  ordered  to  be  sent  by  a 
carrier  who  advertises  that  he  will  not  be  answerable  for  such  goods  unless  en- 
tered and  paid  for  as  such,  the  vendor  is  bound  to  enter  and  pay  for  the  goods 
accordingly.  Thus,  in  the  case  of  Clark  v.  Hutchins,(Ji)  which  was  an  ac- 
tion for  o-oods  sold  and  delivered ;  the  price  of  which  was  511.  The  defen- 
dant, who  lived  at  Gosport,  ordered  goods  from  the  plaintiff,  who  lived  at  Ply. 
mouth,  and  who  sent  them  accordingly  to  a  receiving  house  of  a  vessel  trading 
for  this  purpose  between  the  two  places,  the  owners  of  which  had  published 
cards,  and  sufficiently  established  a  notoriety  in  the  place  that  they  would  not 
be  answerable  for  any  package  above  51. ;  but  the  plaintiff  made  no  special 
entry  or  payment  pursuant  to  the  notice.  The  goods,  in  fact,  were  never  de- 
livered to  the  defendant,  and  no  further  account  was  given  of  them,  and  he 
refused  to  pay  for  them,  on  the  ground,  that  by  the  plaintiff's  neglect  in  not 
making  a  special  entry  of  them  pursuant  to  the  notice,  he  could  have  no  rem- 
edy over  against  the  carriers.  The  Court  determined,  that  the  plaintiff  was 
bound  to  enter  the  goods  specially.  And  Lord  Ellenborough  Ch.  J.  said, 
44  The  plaintiff  cannot  be  said  to  have  deposited  the  goods  in  the  usual  and  or- 
dinary way,  for  the  purpose  of  forwarding  them  to  the  defendant,  unless  he 
took  the  usual  and  ordinary  precaution,  which  the  notoriety  of  the  carrier's 
general  undertaking  required,  with  respect  to  goods  of  this  value,  to  insure 
them  a  safe  conveyance ;  that  is,  by  making  a  special  entry  of  them.  He  had 
an  implied  authority,  and  it  was  his  duty  to  do  whatever  was  necessary  to  se- 
cure the  responsibility  of  the  carriers,  for  the  safe  delivery  of  the  goods  ;  and 
to  put  them  into  such  a  course  of  conveyance,  as  that  in  case  of  a  loss  the 
defendant  might  have  his  indemnity  against  the  carriers." 

So,  in  the  case  of  Buckman  v.  Lcvi,(i)  which  was  an  action  for  goods  sold 
and  delivered.  The  facts  were,  that  the  plaintiff  being  a  chair-manufacturer  in 
London,  and  who  had  been  in  the  habit  from  time  to  time  of  supplying  chairs 
to  the  defendant,  an  upholsterer  at  Wells,  in  Norfolk,  these  chairs  had  been  car- 
ried by  the  plaintiff  to  Harrison's  Wharf,  Irongatc,  from  whence  they  were 
forwarded  by  water  to  the   defendant.     Sometimes  they  were   booked  at  the 


(h)   14  East  Rep.  475. 
Jute,  3  Campb.  129. 

*140 


Sed  vide  Cothay  v.         (t)  3  Campb.  414. 


Chap.  1.]     To  the   Vendee  or  to  a  Carrier,  fyc.  140 

wharf,  and  sometimes   they   were   not,  but  till  the   parcel  in  question,   which 
never  reached  him,  they  had  always  arrived   safe.     A  servant  of  the   plaintiff 
was  the  only  witness  to  speak  to  the  delivery  of  the  chairs  in  question,  and  he 
stated,  that  he  took  them  to  Harrison's  Wharf,  and  left  them  on  the   premises 
there,  with  a  direction  to  the   defendant,  piled  up   among  other  goods  ;  he  had 
no  receipt  for  them,  nor  was  any  entry  respecting   them   made  in  the  wharfin- 
ger's books ;  he  saw  a  man  upon  the  wharf  whom  he  believed  to  *be  a  servant 
of  the  wharfinger,  but  he  did  not  know  his  name,   and   should  not  be   able  to 
recognize  his  person  ;  he  had   no   conversation   with  the   wharfinger,   or  any 
other  person  upon  the  premises.     It  was  objected  for  the   defendant,  that  here 
was  no  sufficient  evidence  of  a  delivery  to   charge   him,  as  the  goods  had  not 
been  booked  in  his   name  at  the  wharf ;  and  he   would  have  no   remedy  over 
against  the  wharfinger.     Lord  Elhnborough  Ch.  J.  said,  "  A  delivery  of  goods 
to  a  carrier  or  wharfinger   with  due  care    and  diligence,  is   sufficient  to  charge 
the  purchaser;  but  he  has  a  right  to  require  that  in  making  this  delivery,  due 
care  and  diligence  shall  be  exercised  by  the  seller.     Before  the  defendant  can 
be  charged  in  the  present  instance,  he  must  be  put  into  a  situation  to  resort  to 
the  wharfinger  for  his  indemnity ;  but   no  receipt  was   taken  for    the  chairs : 
they  were  not   booked,  and  no  person   belonging  to  the  wharf  is  fixed  with  a 
privity  of  their   being  left    there.     The  plaintiff  was  bound  to  procure  them  to 
be  booked,  or  to   deliver  them  to  the  wharfinger  himself,  or  some  person  who 
can  be  proved  to  be  his  agent  for  the  purpose  of  receiving  them."     A  verdict 
was  found  for  the  defendant. 

Where  a  sale  is  made  of  100  bags  of  hops  at  a  certain  price  per  hundred 
weight,  this  is  an  entire  contract ;  and  a  delivery  of  part  will  not  entitle  the 
seller  to  an  action  until  the  whole  has  been  delivered.  (£)(87)  So,  in  the  case 
of  Walker  v.  Dixon,  (1)  which  was  an  action  for  goods  sold  and  delivered  ; 
the  facts  were,  that  the  plaintiff  agreed  to  sell  to  the  defendant  100  sacks  of 
flour  at  a  certain  price  per  sack  ;  10  sacks  to  be  sent  immediately  on  trial ;  to 
be  accepted  or  rejected  in  two  days  from  the  sending  the  10  sacks  :  10  sacks 
had  accordingly  been  sent,  of  which  the  defendant  retained  four,  sending  six 
back  because  they  were  of  secondary  quality,  and  desiring  that  the  error  might 
be  rectified.  Ten  other  sacks  had  afterwards  been  sent  by  the  defendant  to 
the  wharf  of  Raymond  and  Storey  ;  these  were  approved  of  by  the  plaintiff,  and 
he  took  two  of  them,  leaving  the  remainder  at  the  wharf,  to  await  his  further 
orders  ;  and  these  were  afterwards  taken  away  by  the  plaintiff,  who  refused 
afterwards  to  complete  his  engagement  for  the  100  sacks.  The  defendant 
afterwards  insisted  upon  his  delivering  the  remainder  of  the  flour,  and  tendered 
him  the  whole  amount,  giving  him  notice  that  if  he  did  not  deliver  the  rest  he 
would  purchase  the  same   quantity  elsewhere   and  charge  him  with   the  difi'er- 


(fc)  Waddington  v.  Oliver,  2  New.  Rep.  61.         (0  2  Stark.  281. 


(87)  See  Palmer  v.  Hand,  13  J.  R.  431.  -130. 

•141 


141  Of  the  Delivery  of  Goods  Sold,  tyc  [Part  II. 

ence.  The  action  was  brought  for  the  price  of  the  sacks  so  delivered.  But 
Lord  Ellenborough  Ch.  J.  said,  "  This  is  the  case  of  an  entire  contract  for  100 
sacks  ;  part  of  these  were  delivered,  to  which  objection  might  have  been  made 
as  to  quality ;  but  the  party  did  not  stand  upon  that  objection,  but  offered  to 
pay  the  whole.  And  since  the  defendant  was  ready  to  perform  the  *contract, 
and  to  pay  for  the  whole  at  the  price  agreed  upon,  including  the  four  sacks 
which  were  objected  to,  I  am  of  opinion,  that  the  plaintiff  could  not  afterwards 
split  the  contract,  and  bring  his  action  for  part  only.  If  the  defendant  had  in- 
sisted upon  an  abatement  being  made,  in  respect  of  the  first  four,  I  might  have 
thought  differently."     The  plaintiff  was  therefore  nonsuited. 

So,  if  an  agent  for  the  sale  of  horses  sells  to  A.,  in  one  lot,  and  at  an  entire  price, 
a  horse  belonging  to  B.,  and  another  belonging  to  C,  warranting  both  horses  to 
be  sound,  A.  cannot  maintain  an  action  of  assumpsit  against  B.  for  the  un- 
soundness of  the  horse  which  belonged  to  the  latter,  declaring  as  upon  a  sale  of 
one  horse ;  since  the  contract  concerning  the  two  horses  was  entire,  (m) 

Where  goods  are  ponderous  and  incapable  of  being  handed  over  from  one  to 
another,  there  need  not,  as  we  have  already  seen,  (n)  be  an  actual  delivery; 
but  it  may  be  done  by  that  which  is  tantamount,  such  as  a  delivery  of  the  key 
of  a  warehouse  in  which  the  goods  are  lodged,  or  by  delivery  of  other  indicia  of 
property,  as  a  delivery- order  upon  a  wharfinger,  &c.  (88)  But  this  species  of 
delivery  will  be  more  fully  considered  in  the  following  division  of  the  present 
chapter. 

Goods  packed  in  the  cloths  of  the  vendee,  and  set  apart  for  him  in  the  ven- 
dor's warehouse,  does  not  amount  to  a  delivery,  if  part  of  the  terms  of  sale  are, 
that  they  shall  not  be  carried  away  till  paid  for.  Thus,  in  the  case  of  Goodall  v. 
Skellon,(o)  which  was  an  action  for  goods  sold  and  delivered;  the  material 
facts  were,  that  the  plaintiff  had  agreed  to  sell  a  quantity  of  wool  to  the  defen- 
dant, that  a  shilling  earnest  was  paid  on  the  part  of  the  defendant  to  bind  the 
bargain,  that  the  wool  was  packed  in  cloths  furnished  by  the  defendant  for  that 
purpose,  and  left  at  a  hovel  belonging  to  the  plaintiff,  and  that  the  defendant 
was  to  send  his  waggon  in  a  few  days  to  take  it  away  ;  but  while  the  defen- 
dant's servant  was  weighing  and  packing  it,  and  proposing  to  the  plaintiff  to  fix 
the  time  when  the  waggon  should  come,  the  plaintiff  declared  "  that  it  should 
not  go  off  the  premises  till  he  had  the  money  for  it."  The  Court  held  that  this 
did  not  amount  to  a  delivery,  so  as  to  entitle  the  vendor  to  maintain  this  form  of 

(mi)  Symonds  v.    Carr,  1  Campb.  361.  (o)  2  H.  Bl.  316. 

(?i)  Ante,  89. 

(83)  See  Wilkes  v.  Ferris,  5  J.  R.  335.  Leedom  v.  Phillips,  1  Yeates,  529.  Bailey  v. 
Ogden,  3  J.  R.  399. 

On  a  sale  of  loos  in  a  boom,  merely  shewing  them  to  the  vendee,  at  the  time  of  sale,  is  a 
sufficient  delivery ;  because  a  delivery  in  hand,  would  be  highly  inconvenient,  if  not  im- 
practicable. Jewell  v.  Warren,  12  Mass.  Rep.  3C0.  So,  on  the  sale  of  ponderous  or  bulky 
articles,  notice  to  the  purchaser  by  the  vendor,  that  he  is  ready  to  deliver  them,  is  sufficient ; 
and  if  the  purchaser  fail  to  take  them  away,  the  vendor  may,  on  due  notice,  sell  them  at 
public  auction  and  charge  the  purchaser  with  the  difference  of  price.  Jldams  v.  Jtfinnick, 
Supreme  Court,  April,  1314.  MS.     Whart.  Dig.  592.     Girard  v.  Taggarl,  5  Serg.  &  R.  19. 

*142 


Chap.  1.]  What  Jlcts  vest  the  Property  in  the  Buyer.     142 

action.  And  Buller  Just,  said,  "  Here  the  evidence  is,  that  the  plaintiff  peremp- 
torily insisted  on  not  parting  with  the  goods  till  he  was  paid  ;  clearly  therefore 
there  was  no  delivery." 

So,  in  the  case  of  Owenson  v.  Morse,(p)  where  the  plaintiff  bought  some 
plate  at  the  shop  of  the  defendant,  a  silversmith,  and  the  defendant,  by  the  plain- 
tiff's directions,  delivered  the  plate  to  an  engraver  to  engrave  the  plaintiff's 
arms  on  it ;  both  parties  directing  the  engraver  to  bring  back  the  goods  to  the 
defendant,  who  was  to  pay  for  the  engraving.  *The  Court  held  that  there  could 
be  no  delivery  to  the  plaintiff,  unless  the  engraver  could  be  considered  as  his 
agent  or  servant ;  but  that  there  was  no  pretence  for  considering  him  in  that 
situation,  as  he  was  employed  by  the  defendant  and  not  by  the  plaintiff,  and 
as  the  plate  was  to  be  returned  to  the  defendant  who  was  to  pay  for  engrav- 
ing it. 

The  subject  of  the  delivery  of  goods  will  be  further  considered  under  the  fol- 
lowing sub-division  of  this  chapter. 

11.  WHEN  THE  PROPERTY  IN  GOODS  SOLD  IS  VESTED  IN  THE  BUY- 
ER ;  AND  AT  WHOSE  RISK  THEY  REMAIN  WHILST  IN  THE  POSSES- 
SION OF  THE  SELLER:  ALSO  OF  THE  SELLER'S  LIEN  OR  RIGHT  TO 
RETAIN,  OR  STOP  THEM  IN  TRANSITU. 

The  different  branches  of  the  former  subdivision,  as  well  as  the  present,  are 
so  immediately  connected  together  as  to  render  it  somewhat  difficult  to  treat  of 
each  part  separately,  without  using  repetition ;  yet  the  subject  embraces  such 
variety  of  matter  as  to  require  the  parts  to  be  divided  in  order  to  render  the  sub- 
ject clear  and  intelligible ;  and  therefore  I  propose,  in  the  present  section,  to 
consider  it  under  the  following  heads  ;  namely,  first,  when  the  property  in  goods 
sold  is  vested  in  the  buyer  ;  secondly,  the  vendor's  lien  or  right  to  retain  pos- 
session of  the  goods  after  the  sale  of  them  ;  and  thirdly,  the  vendor's  right, 
upon  the  event  of  the  insolvency  or  bankruptcy  of  the  buyer,  to  stop  the  goods 
in  transitu. 

1.  When  the  Property  in  Goods  sold  is  vested  in  the  Buyer.] — 
As  a  general  rule  it  is  said,(y)  that  where  a  thing  sold  is  in  existence  and  in 
the  possession  of  the  seller,  and  the  sale  is  made  by  words  of  present  contract, 
and  the  price  paid,  the  legal  property  shall  pass  in  the  thing  sold  although  there 
be   no  actual  delivery  :  (S9)  but  a  contract  may  be  either  executed,  as  if  A. 


(p)  7  Term  Rep.  64.  Biens,  D.  3.    2  Bl.  Com.  44S.  Back  v.  Owen, 

(q) |  Noys,  Max.  ch.  42.     Com.  Dig.  tit.     5  T.  R.  409.     Hob.  41.     Et  vide  ante,  78. 

(89)  See  Lansing  v.  Turner,  2  J.  R.  13.  Hunn  v.  Boicne,  2  Caines,  33.  In  cash  sales  of 
goods,  if  no  time  be  agreed  on  for  the  payment,  both  the  delivery  and  payment  are  simulta- 
neous acts  ;  and  the  vendor  may  refuse  to  deliver  the  goods,  without  actual  payment;  but  if 
the  goods  be  delivered  without  payment,  this  is  a  waiver  of  the  condition,  and  the  property 
is  vested  in  the  vendee.  Chapman  v.  Lathrop,  6  Cowen,  110.  Harris  v.  Smith,  3  Serg.  &R. 
20,  24.  Per  Gibson,  J.  But  if  goods  be  delivered  upon  condition,  the  property  will  not  vest 
in  the  vendee,  unless  the  condition  be  performed  :  Thus,  where  A.  contracted  to  sell  certain 
goods  to  B.,  on  credit,  on  condition  that  B.  should  give  security  for  the  price,  and  delivered 

•143 


143       What  Acts  vest  the  Property  in  the  Buyer.  [Part  II. 

agrees  to  change  horses  with  B.,  and  they  do  it  immediately  ;  in  which  case  the 
possession  and  the  right  are  transferred  together ;  or  it  may  be  executory,  as 
if  they  agree  to  exchange  next  week  ;  here,  the  right  only  vests,  and  their  re- 
ciprocal property  in  each  other's  horse  is  not  in  possession,  but  in  action  ;  for 
a  contract  executed,  which  differs  nothing  from  a  grant,  conveys  a  chose  in  pos- 
session, a  contract  executory  conveys  only  a  chose  in   action.  (90)      So,  where 

|  one  sells  a  horse  for  money,  and  the  buyer  pays  earnest,  or  signs  a  note  in 
writing  of  the  bargain,  and  the  horse  afterwards,  and  before  the  delivery  or 
payment  of  the  price,  dies  in  the  stable  of  the  vendor,  the  latter  is  entitled  to 
the  money,  because  by  the  contract  the  property  in  the  horse  was  in  the  ven- 
dee.^-) So,  where  money  or  other  *thing  is  given  upon  a  sale  to  bind  the 
bargain,  the  property  in  the  article  sold  is  so  far  vested  in  the  buyer  that  the 
vendor  cannot  sell  them  to  another  without  a  default  in  the  vendee  ;  and  there- 
fore if  the  vendee  do  not  come  and  pay  for  the  goods  and  take  them   away,  the 

j  vendor  ought  to  request  him  ;  and  if  he  refuses  to  do  so,  in  a  convenient  time, 
the  agreement  may  be  considered  as  abandoned  on  his  part,  and  the  vendor  is 
at  liberty  to  sell  them  to  any  other  person. (*)  (91)  It  is,  however,  difficult  in 
many  cases  to  determine  at  what  precise  period  the  property  in  goods  sold,  is 
so  absolutely  vested  in  the  buyer,  as  to  prevent  the  seller  from  detaining  or 
stopping  the  goods  in  transitu.  But,  generally  speaking,  it  may  be  observed, 
that  if  upon  a  sale,  the  goods  are  transferred  and  delivered  into  the  actual  pos- 
session of  the  vendee,  the  property  is  immediately  and  absolutely  vested  in  him, 
and  the  vendor  cannot  afterwards  seize  or  take  them  upon  the  insolvency  of  the 
vendee.  And  if  goods  are  so  ponderous  that  they  cannot  be  delivered  from 
hand  to  hand ;  or,  it  is  not  convenient  to  the  parties  that  there  should  be  an  im- 
mediate and  actual  delivery  of  the  whole  of  the  goods,  we  shall  presently  see 
that  a  delivery  either  of  part  of  them,  or  a  delivery  of  a  key  of  the  warehouse 


(r)  Vide  same  references  as  in  the  last     Ni.  Pri.  50.     6   Mod.    162.     Skin.  €47.  et 
note.  ante. 

(s)  Per  Holt  Ch.   J.     1    Salk.   113.     Bid. 


the  goods  without  the  security,  but  declaring  at  the  same  time,  that  he  should  not  consider 
the  goods  as  sold,  until  the  security  should  be  furnished  :  it  was  held,  that  the  title  of  the 
goods  remained  in  A.  notwithstanding  the  delivery.  Hussey  v.  Thornton,  4  Mass.  Rop.  405. 
S.  P.  Marston  v.  Baldwin,  17  Mass.  Rep.  606.  See  Conyers  v.  Ennis,  6  Cowen,  116.  note 
(a).  Flaggerty  v.  Palmer,  6  Johns.  Ch.  Rep.  437.  Keeler  v.  Field,  1  Paige,  312.  But  where 
a  slave  is  sold  and  delivered,  without  a  bill  of  sale,  it  is  to  be  presumed,  prima  facie,  that  the 
vendor  has  parted  with  his  title  :  And,  therefore,  if  he  claims  that  the  title  was  reserved  in 
himself,  until  the  purchase  money  should  be  paid,  the  onus  probandi  lies  on  him.  Rundolph 
v.  Randolph,  3  Munf.  99. 

(90)  A.  contracted  with  B.  to  burn  a  kiln  of  bricks,  and  B.  agreed  to  deliver  to  A.  10,000 
of  them,  when  burnt,  as  a  compensation  for  the  labor;  A.  performed  the  service  according 
to  the  agreement ;  there  was  no  demand  by  A.,  or  delivery  by  B.,  of  the  bricks  ;  held,  that 
here  was  no  such  constructive  delivery  as  would  vest  the  property  of  the  10,000  bricks  in 
A.;  and,  consequently,  that  B.  might  maintain  trespass  against  the  sheriff  for  seizing  and 
carry-ins  them  away,  as  the  property  of  A.  Brewer  v.  Smith,  3  Greenl.  44.  See  post, 
note  (91). 

(91)  See  Sands  v.  Taylor,  5  J.  R.  395.  Mams  v.  Minnick,  Supreme  Court,  April  1814. 
MS.  Wharf.  Dig.  Penn.  Rep.  592.  Girard  v.  Taggart,  5  Serg.  &  R.  19.  Jackson  v.  Watts, 
1  M'Cord,  288. 


♦  144 


Chap.  I.]   What  Acts  vest  the  Property  in  the  Buyer.       144 

in  which  they  are  deposited,  or  any  other  symbolical  delivery  of  the  goods, 
will  be  equivalent  to,  and  have  the  same  effect  in  law,  as  an  actual  delivery '; 
and  that  such  delivery  will  vest  the  property  in  the  vendee.  (92)  We  have  just 
seen(t)  that  a  delivery  of  goods  to  a  carrier  is  a  delivery  to  the  vendee,  and 
that  such  delivery  vests  the  property  in  him.  So,  with  regard  to  ponderous 
and  other  goods,  it  has  been  shewn  what  kind  of  acceptance  and  delivery  will 
satisfy  the  statute  of  frauds.  («)  It  will  therefore  now  be  necessary  to  consider 
what  other  acts  done  by  the  vendor  will  vest  the  property  in  the  vendee.  And 
first,  it  has  been  held,  that  a  pari  delivery  of  an  entire  quantity  of  goods  sold, 
vests  the  whole  in  the  buyer.  Thus,  in  the  case  of  Hammond  v.  Anderson, (v) 
where  a  quantity  of  bacon  had  been  sold  at  one  entire  price,  and  lodged  at  a  wharf; 
and  possession  given  by  the  wharfinger  to  the  vendee  four  days  after  the  sale, 
when  the  vendee  weighed  the  whole  of  the  bacon,  and  took  away  part  of  it: 
it  was  held  that  the  property  vested  in  the  vendee,  though  by  the  custom  of  the 
trade  the  vendor  was  to  pay  the  charges  of  warehousing  for  fourteen  days  af- 
ter the  sale. 

So,  the  delivery  of  part  of  a  cargo  of  goods,  where  there  appears  no  intention, 
either  previously  or  at  the  time  of  the  delivery,  to  separate  that  part  from  the 
rest,  is  in  law  a  delivery  of  the  whole  cargo,  (w)  But,  where  goods  are  lying 
in  bulk,  and  a  sale  is  made  either  of  the  whole,  *or  of  part  of  them,  and  some- 
thing remains  to  be  done,  either  to  ascertain  the  quantity,  or  to  separate  the 
part  sold  from  the  bulk,  as  the  weighing,  or  drawing  oft*,  &c.  ;  the  property  in 
such  case  does  not  vest  in  the  buyer  until  this  be  done.(93) 

So,  if  parcel  of  the  goods  bought  are  weighed,  or  drawn  off,  and  delivered, 
or  placed  to  the  account  of  the  vendee,  he  paying  warehouse  rent  for  the  same, 
the  property  of  such  part  only  is  vested  in  the  buyer,  and  not  the  remainder. 
Thus,  in  the  case  of  Hanson,  assignee  of  Wallace  v.  Meyer,  (x)  which  was  an 
action  of  trover.  A  quantity  of  starch  was  lying  at  (he  warehouse  of  a  third  per- 
son, supposed  to  be  about  four  tons,  belonging  to  the  defendant,  were  sold  by 
him  to  Wallace  before  his  bankruptcy,  at  6/.  per  cwt.,  by  bill  at  two  months, 
and  14  days  allowed  for  the  delivery,  and  the  weight  to  be  ascertained.  The 
customary  mode  of  delivery  is,  that  the  seller  gives  the  buyer  a  note  or  delive- 
ry order  addressed  to  the  warehouse-keeper,  to   weigh  and  deliver  the  goods  to 


(/)  Ante,  137.  (x)  6  East  Rep.  614.  et  vide  Busk  v.  Davis, 

(w)   Ante,  87.  2  Maule  &  Sel.  397.    Wallace  v.  Breeds,  post. 

(v)   1  New.  Rep.  69.  147. 
(to)   Shebcyv.  Hayivard,  2H.B1.  509. 


(92)  See  ante,  note  (88). 

(93)  See  M' Donald  v.  llewelt,  15  J.  R.  349.  Rapelye  v.  Mackie,  6  Cowen,  250.  Outvoter 
v.  Dodge,  7  Cowen,  85.  The  defendant  having  sold  to  the  plaintiff  at  a  certain  price  per 
ton,  a  large  pile  of  slate,  to  be  paid  for  as  parcels  of  it  should  from  time  to  time,  be  taken 
away  ;  and  the  plaintiff'  having  paid  the  price  of  11  tons  ;  it  was  held,  in  trover  for  the  14 
tons,  that  the  plaintiff  was  entitled  to  have  that  quantity  weighed  off  and  separated  for  him, 
but  that  until  such  separation,  he  had  no  property  in  any  specific  14  tons  of  the  slate,  and 
could  not  maintain  his  action  therefor.     Young  v.  Jlustin,  6  Tick.  2S0. 

19  *143 


145    What  Acts  vest  the  Property  in  the  Buyer.  [Part  II. 

the  buyer  ;  this  note  is  taken  to  the  warehouse-keeper,  and  is  his   authority  to 
weigh  and  deliver  the  goods  to  the  vendee.     A   delivery  note  was  accordingly 
given  and  lodged  with  the  warehouse-keeper,  and  part  of  the  starch  was  weigh- 
ed and  delivered  to  Wallace  ;  the  remaining  quantity,  which  was    the  subject 
of  the  action,  continued  at  the  warehouse   in  the  name  and  at  the   expence  of 
the  defendant  till  they  were  weighed   and  delivered  ;  and  the  residue  also   af- 
terwards continued  there  in  like  manner  unweighed,  in  his  name,  and  charged 
to  his  expense.      Wallace  became  bankrupt ;  and  the  defendant,  after  the  bank- 
ruptcy, took  away    the  remainder  of  the  starch  |that  had  not  been   so  weighed. 
A   verdict  was  found  for  the  defendant,   subject  to   the   opinion  of  the    Court ; 
which  was  afterwards  given  in  his  favour  :  and  Lord  Ellenborough,  in  deliver- 
ing that  opinion,  said,  "  By  the  terms  of  the  bargain,   two  things  in  the  nature 
of  conditions  or  preliminary  acts  on  the  part  of  the  bankrupt,  necessarily  pre- 
ceded the  absolute  vesting  in  him   of  the  property   contracted  for  ;  the  first  of 
them,  is  one  which  does  so  according  to  the   generally  received  rule  of  law  in 
contracts  of  sale,  viz.,  the  'payment  of  the   agreed   price  or   consideration   for 
the  sale  ;  the  second,  which  is  the  act  of  weighing,  does  so  in  consequence  of 
the  particular  terms  of  this  contract,  by  which  the  price  is  made  to  depend  up- 
on the  weight .  the  weight  therefore  must  be  ascertained  in  order  that  the  price 
may  be  known  and  paid  ;  and  unless  the  weighing  precede  the  delivery,  it  can 
never,  for  these  purposes,  effectually  take  place  at  all.     In  this  case   a  partial 
weighing  and  delivery  of  several  quantities  of  the  starch  contracted   for  had 
taken  place  ;  the   remainder  of  it   was    unweighed   and  undelivered ;  and  of 
course  no  such  bill  of  two  months  for   the  pi  ice,  so  depending  on  the  weight, 
could  yet  *be  given.     The  question  is,  what  is  the  legal  effect  of  such  part  de- 
livery of  the  starch  on  the  right   of  property,  in  the  undelivered  residue  there- 
of?    On  the  part  of  the  plaintiffs,  it  is  contended,  that  a  delivery  of  part  of  an 
entire  quantity  of  goods  contracted  for,  is  a  virtual  delivery  of  the  whole,  so  as 
to  vest  in  the  vendee  the  entire  property  in  the  whole  ;  although  the   price  for 
the  same  should  not  have  been  paid  :  this   proposition  was  denied  on    the  part 
of  the   defendant,  and  many  authorities   have    been  cited   on   both    sides  ;  but 
without  deciding  at  present  what  might  be  the  legal  effect  of  such  part  delive- 
ry,   in  a  case  where  the  payment  of  price  was  the   only  act   necessary  to  be 
performed  in  order  to  vest  the  property ;  in  this  case  another  act,  it  will  be  re- 
membered, was  necessary  to  precede   both  payment  of  price  and  delivery  of 
the  goods  bargained  for,  viz.  weighing.     This  preliminary  act  of  weighing   it, 
certainly  never  was  in  the  contemplation  of  the  sellers  to  wave,  in  respect  of 
any  part  of  the  commodity  contracted  for.     The  order  stated  in  the  case  from 
the  defendant  to  the  warehouse-keeper,  is  to  weigh  and  deliver  all    his  starch. 
Till  it  was  weighed,  he  as  his  agent  was  not  authorised  to  deliver  it ;  still  less 
were  the  buyers  themselves,  or  the  present  plaintiffs,  their  assignees,  authoris- 
ed to  take  it  by  their  own  act  from  the  warehouse  ;  and  if  they  could  not   so 
take  it,  neither  can  they  maintain  this  action  of  trover  founded  on  such  a   sup- 
posed right  to  take,  or,  in  other   words,    founded  on  such  a  supposed  right   of 
property   in  the  subject  matter  of  this  action.     If  any  thing  remain  to  be  done 
*146 


Chap.  1.]   What  Acts  vest  the  Properly  in  the  Buyer.     146 

on  the  part  or  the  seller,  as  between  him  and  the  buyer,  before  the  commodity 
purchased  is  to  be  delivered,  a  complete   present    right  of  property  has   not  at- 
tached in   the  buyer  ;  and  of  course  this  action,    which   is   accommodated  to, 
and  depends  upon  such  supposed  perfect  right  of  property,  is  not  maintainable." 
So,  in   the    case  of  Rug  v.    Minett,(y)    where    a  quantity  of  turpentine  in 
casks  was  sold  by  auction  in  lots,  at  a  certain  price  per   cwt.,   each    cask,  ex- 
cept the  two  last,  being  marked   at  a  certain  weight,  at   which  they  were  to  be 
taken  by  the  buyer,  the  two  last  lots  being  reserved  to  fill  up  the  rest,  and  be- 
ing on  that  account  sold  at  uncertain  quantities,  and  after  the  sale   some  of  the 
casks  were  filled  up  ;  but  before  the  remainder  were  filled,  the  whole  was  con- 
sumed  by  fire  :  it  was  decided,  that  the  property  in  those  casks  which  had  been 
filled  up,  was  transferred  to  the  buyer,  but  that  those  which  had  not  been  filled 
up,  still  remained  the  property  of  the  seller.     And,    in    the  case  of  Withers  v. 
Lijss,(z)  where  a  particular  parcel  of  goods  lying   in  a  warehouse,    was  sold 
at  an  agreed  price  per  cwt.  (the  weight  at  the  time   of  the  sale    being  uncer- 
tain,) to  be  paid  for  by  a  bill    of  exchange.     The    vendor  gave  the  vendee    an 
order  on  the  warehouse-man  for   weighing  and  *delivering  the  goods.     It  was 
held  by   Gibbs  Ch.  J.  at  nisi  prius,  that  the  property  did  not  pass    to  the  ven- 
dee, as  something  still  remained  to  be  done  ;  and  that  it  made   no  difference 
that  the  whole  of  the  goods  was  sold  ;  the  principle  being,  that  while   any 
thing  remains  to  be  done  to  ascertain  the  price,  the  possession  is   not  transfer- 
red to  the  purchaser ;  for  until  the  goods  were  weighed,  the  bill    of  exchange 
which  was  to  be  given  in  payment  for  them  could  not  be  drawn.     But,  in  the 
case  of  Whitehouse  v.  Frost,  (a)  which  was  an   action  of  trover,    brought    by 
the  assignees  of  Townsend,  a  bankrupt,  in  respect  of  a    sale  to  Townsend  of 
10  tons  of  oil,  parcel  of  a  bulk  of  40  tons  lying  in  a  cistern  in  an    oil-house 
at  Liverpool,  for  which  he  was  to  give  his  acceptance  payable   at  four  months. 
A  bill  of  parcel  was  rendered   to  Townsend  stating  where  the  oil  was,  and  al- 
so that  it  was  at  his  risk.     A  delivery  order  was  given  to  Townsend  and  lodged 
by  him  at  the  oil-house  ;  and  he  accepted  the  bill   for  the  amount.      Townsend 
became  bankrupt  before  the  oil  was  drawn  off,  and  before  the  bill  became  due  ; 
and  at  the  time  of  his   bankruptcy  the  oil  was  still  lying  in  the  cistern,  mix- 
ed with  the  other  oil.     The  question,  which  was  argued  at  the  bar,  was,  wheth- 
er these  facts  amounted  to  a  delivery  of  the  oil  to  Townsend,  so  as  to  vest  the 
property  in  him.     It  was  contended  on  the  part  of  the  defendants,  that  something 
remained  to  be  done,  namely,  the  separation  of  the  ten   tons    from  the  general 
mass  of  oil  in  the  cistern,    before  the  property   in  the  oil   could  be   transferred 
from  the  vendor  to  the  vendee  :  but  Mr.  Just,  he  Blanc,  before    whom  the  case 
was   tried,   said,  "  That  the  objection  only    applied,  where  something  remain- 
ed to  be  done  as  between  the  buyer  and  the  seller,'or  for  the  purpose  of  ascer- 
taining either  the  quantity  or  the  price  ;  neither  of  which  remained  to  be  done 
in  this   case ;  and  that,  therefore,  though  something  remained   to  be  done, 


as 


GO   11  East  Rep.  210.  («)  12  East  Ren.  614, 

(?)  4  Campb.  237.  w  v 


*147 


147      What  Acts  vest  the  Property  in  the  Buyer.    [Part  II. 

between  the  vendee  and  the  persons  who  retained  the  custody  of  the  oil,  before 
the  vendee  could  be  put  into  separate  possession  of  the  part  sold  ;  yet,  as  be- 
tween him  and  his  vendors,  nothing  remained  to  perfect  the  sale."  And  the 
Court  of  King's  Bench  afterwards  determined,  that  the  property  had  vested  in 
Toivnsend  before  his  bankruptcy. 

A  similar  case,  however,  was  soon  afterwards  brought  before  the  same  court, 
of  Wallace  v.  Breeds,  {h)  where  it  appeared,  that  50  out  of  90  tons  of  Green- 
land oil,  lying  at  a  wharf  in  casks  were  purchased,  and  a  delivery  order  given 
and  lodged  ;  but  it  was  proved,  that  before  Greenland  oil  is  delivered,  it  is  the 
constant  custom  to  have  the  casks  searched  by  a  cooper  employed  by  the  seller  ; 
and  it  is  also  the  custom  for  a  broker,  on  behalf  both  of  the  buyer  and  seller,  to 
attend  to  make  a  minute  of  the  foot-dirt  and  water  in  each  cask  ;  and  the  casks 
are  then  filled  up  by  the  seller's  cooper  at  the  seller's  expense,  and  delivered 
in  a  complete  *state,  containing  the  quantity  sold.  The  buyer  became  bankrupt, 
and  at  the  time  of  the  bankruptcy  none  of  these  customary  acts  had  been  done  ; 
the  seller  therefore  countermanded  his  delivery  order.  And  the  Court  determin- 
ed, that  the  property  in  the  50  tons  of  oil  Avas  not  vested  in  the  buyer  :  and  upon 
the  case  of  Whitehouse  v.  Frost  being  cited,  Lord  Ellenborough  Ch.  J.  said, 
"  The  difference  between  this  case,  and  that  of  Whitehouse  v.  Frost  is,  that 
there,  nothing  remained  to  be  done  by  the  seller  in  order  to  complete  the 
sale  as  between  him  and  the  buyer ;  but  here  it  is  expresly  found  that  some 
things  did  remain  to  be  done  by  the  seller,  which  were  to  precede  the  delivery 
to  the  buyer ;  the  casks  were  to  be  searched  by  a  cooper  employed  by  the  sel- 
ler ;  and  after  the  foot-dirt  and  water  in  each  cask  were  ascertained  by  the 
broker  attending  on  behalf  of  both  parties,  the  casks  were  to  be  filled  up  by  the 
seller's  cooper  at  his  expense,  and  delivered  in  a  complete  state,  containing  the 
quantity  sold.  These  were  material  acts  to  be  done  by  the  seller  before  the  de- 
livery to  the  buyer  ;  and  the  Courts  have  frequently  laid  hold  of  circumstances 
like  these,  to  retain  the  property  in  favour  of  the  unpaid  seller  :  and  before  the 
oil  was  measured  out,  and  these  things  were  done,  the  delivery  was  counter- 
manded." 

The  case  of  Whitehouse  v.  Frost,  has,  however,  been  very  much  shaken,  if 
not  overruled,  by  the  two  following  cases,  viz.,  Austin  v.  Craven,(c)  in  which 
it  was  expressly  determined,  by  the  Court  of  Common  Pleas,  that,  upon  a  sale 
of  a  particular  quantity  of  sugar  of  a  certain  quality,  which  was  not  separated 
from  the  general  stock  of  the  buyer,  no  action  of  trover  could  lie  for  these  su- 
gars ;  they  never  having  been  separated  from  the  general  stock  of  the  seller. 
And,  in  the  case  of  White  v.  Wilks,{d)  it  was  also  determined  by  the  same 
Court  that  upon  a  sale  of  part  of  a  large  quantity  of  oil  to  be  drawn  out  of  cis- 
terns, no  property  passes  until  the  oil  is  actually  drawn  off.  In  this  case,  the 
determination  of  the  Court  of  King's  Bench  in  Whitehouse  v.  Frost,  and  other 
cases  being  pressed  upon  the  Court  in  argument,   Lord  Ch.  J.  Mansfield  said, 


(6)   13  East  Rep.  522.  («0  5  Taunt.  176. 

(c)  4  Taunt.  611. 

*148 


Chap.  1.]   What  Acts  vest  the  Property  in  the  Buyer.    148 

"  In  the  case  of  Austen  v.  Craven,  this  Court,  in  direct  opposition  to  the  cases 
cited,  held  that  trover  would  not  lie  for  sugars  which  had  not  been  specifically- 
separated  from  the  vendor's  stock  ;  and  although  the  objection  was  not  made 
fully  comprehensible  upon  the  first  trial  of  that  cause,  yet  as  soon  as   it  came 
to  be  stated  in  Court,  it  became   too   clear  to   be   resisted  ;  and   although   the 
case  was  an  extremely  hard  one,  inasmuch  as  the  very  persons  who  refused  to 
deliver  the  sugars,  had  told  the   purchaser  that  he  might  safely  pay  the  bank- 
rupt for  them,  we  held  that  he  could  not  recover,   and  unless  it  can  be  shown 
that  that  decision  was  wrong,  it  is  impossible  that  the  plaintiff  should  prevail  in 
this  case.     The  objection  here  is,  that  no  specific  quantity  of  *oil  was  sold  ; 
the  quantity  agreed  to  be  sold  was  mixed  with  a  much  larger  quantity  ;  and  not 
only  that,  but  it  was  mixed  with  several  different  quantities  :  how  was  it  to  be 
separated  ?  In  the  cases   where    the  payment  of  rent  for  warehouse   room  has 
been  an  ingredient  to  make  a   complete   sale,  the  question  has  always   been  on 
the  constructive  delivery,  not  on  the  separation  of  the  goods  from  the  mass  :   in 
all  those  cases,  there  has  been    a  complete  separation  of  the   goods   sold,  and 
the  only  doubt  has  been,  whether  there   were    a   symbolical   delivery.       This, 
too,  is  the  case  of  a  liquid,  which  makes  the  difficulty  much  greater  than  in  the 
case  of  a  solid  substance."     And  Heath  Just,  said,  "  The  payment  of  rent  is 
not  equivalent  to  a  delivery  of  the  goods.     Suppose  a  part  of  the  oil  in  some  of 
these  cisterns  was  lost  or  burnt,  who  is  to  know  whether  it  is  the  vendor's  or 
the  purchaser's  oil  that  is  destroyed  ?  We  do  not  pretend  to  reconcile  the  case 
of  Austin  v.  Craven  with  that  of    Whilehouse  v.  Frost,  it  would  be  impossible 
so  to  do  ;  and  unless  the  plaintiff  can  overthrow  that  case,  it  is   impossible  to 
grant  a  new  trial  here  :  besides,  there  are  numbers  of  old  cases  in  which  it  has 
been  held,  that  the  plaintiffs  could  not  succeed  for  want  of  a  sufficient  certain- 
ty and  separation  of  the  goods  sold."       And  in  conformity  to  these  latter  deter- 
minations, it  has  been  held,  that  on  a  sale  of  a  certain  quantity  of  hemp,  form- 
ing part  of  a  larger  quantity,  the  property  does  not  pass  from  the  vendor  to  the 
vendee  till  the  hemp  is  weighed  off.  (e)     So,  where  it  was  proved  to  be  the 
custom  upon  the  sale  of  goat-skins,  for  the  seller  to  count  the  number  of  skins 
in  each  bale  ;  and  after  the  sale  of  a  certain  quantity  of  skins,  but  before  they 
had  been  counted  they  were  consumed  by   fire.     It  was   determined,   that  the 
property  had  not  passed  to  the  purchaser,  and   that  the  loss  must  fall  upon  the 
seller.  (/) 

But  if  goods,  whilst  lying  either  at  a  public  or  private  wharf  or  ware-house,  or 
at  the  docks,  are  sold,  and  they  are  at  that  time  in  a  state  fit  for  immediate 
delivery,  but  it  is  more  convenient  to  the  purchaser,  that  some  symbol  or  repre- 
sentative of  the  goods  should  be  given,  than  to  make  an  actual  delivery  of  them  ; 
such  a  mode  of  delivery  is  deemed  equivalent  to,  and  as  effectual,  in  point  of 
law,  as  an  actual  delivery,  and  will  vest  the  property  absolutely  in  the  purchaser. 


(e)  Shepley  v.  Davis,  5  Taunt.  617.  Busk  v.         (/)  Za^ura  v.  FimieU,  2.  Campb.  240. 
Davis,  2  3V1.  &  S.  397. 


149 


149        What  Acts  vest  the  Property  in  the  Bayer.  [Part  II. 

Thu3,  in  the  case  of  Greaves  v.  Hepke,(g)  which  was  an  action  for  money  paid. 
And,  at  the  trial,  it  appeared  that  the  plaintiffs,  who  were  brokers  at  Liver- 
pool, by  order  and  on  account  of  the  defendants,  who  were  merchants  in  Lon- 
don, sold  to  one  Maxwell,  on  the  4th  September,  1817,  a  quantity  of  coffee  then 
lying  in  a  warehouse  at  Liverpool  On  the  13  th  September,  Maxwell  paid  to 
the  plaintiffs  the  purchase  money,  and  received  from  them  the  usual  *  order  to 
the  warehouse-keeper,  signed  by  the  original  importer,  for  the  delivery  of  the 
coffee ;  by  which  he  was  enabled  to  obtain  immediate  possession.  The 
plaintiffs  settled  with  the  defendants  in  account  for  the  same.  The  custom  at 
Liverpool  was,  that  the  purchaser  of  such  goods  should  be  allowed  to  let  them 
remain  in  the  warehouse  for  two  months,  and  the  rent  for  that  period  was  to 
be  paid  by  the  seller.  Before  two  months  had  elapsed  the  goods  were  distrain- 
ed bv  the  landlord  for  rent ;  and  the  plaintiffs,  in  order  to  redeem  them,  paid 
the  rent,  and  brought  this  action  to  recover  the  money  from  the  defendants. 
The  learned  Judge  Bayley,  before  whom  the  cause  was  tried,  nonsuited  the 
plaintiff ;  and  the  Court  afterwards  confirmed  the  nonsuit :  and  Abbott  Ch.  J. 
said,  "  I  think  that  in  this  case  it  is  quite  clear,  that  the  property  in  these 
goods  had  become  actually  vested  in  Maxwell  before  they  were  distrained 
for  rent.  The  contract  is  for  immediate  delivery  ;  and  by  the  order  for  deliv- 
ery, Maxwell  was  enabled  to  obtain  immediate  possession.  The  sellers,  there- 
fore, had  done  every  act  on  their  part  to  be  done,  and  the  delivery  to  Maxwell 
was  complete.  It  is  true  that  by  the  usage  of  Liverpool,  the  seller  is  also  to  pay 
the  rent  of  the  warehouse  for  two  months  after  the  sale  ;  but  that  is  a  matter 
of  express  stipulation,  and  does  not  by  any  means  compel  the  latter  to  indem- 
nify the  purchaser  against  accidents  occurring  in  the  meanwhile.  Suppose 
a  loss  by  fire  within  the  two  months  ;  that  would  undoubtedly  fall  on  Maxwell  : 
and  the  circumstance  of  the  goods  being  distrained  for  rent  due  to  the  landlord 
of  the  premises,  is  also  an  accident  to  which  the  goods  are  liable,  and  which 
must  fall  on  Maxwell,  in  whom  they  are  vested  at  the  time." 

So,  where  goods  lying  at  the  docks  are  sold,  and  the  seller  delivers  to 
the  buyer  the  usual  dock  warrants  and  certificates,  which  are  commonly  hand- 
ed over  to  the  vendee  upon  such  sales  as  a  symbolical  delivery  ;  this  is  deem- 
ed sufficient  to  transfer  and  vest  the  property  in  the  buyer,  without  any  entry 
of  such  transfer  being  made  in  the  books  of  the  company.  This  was  settled 
in  the  case  of  Zwingcr  v.  Samuda,(h)  which  was  an  action  brought  to  recover 
the  value  of  30  casks  of  coffee  lying  in  the  warehouses  of  the  West  India  Dock 
Company.  The  plaintiff  had  purchased  the  coffee  under  the  following  circum- 
stances :  it  had  been  purchased  by  Roebuck,  with  money  advanced  by  the 
defendant  ;  and  for  securing  repayment,  Roebuck  had  transferred  it  in  the  books 
of  the  West  India  Dock  Company,  into  the  name  of  David  Samuda,  in  trust  for 
the  defendant  by  way  of  pledge.  Roebuck  afterwards,  on  the  13th  August,  agreed 
to   sell   the  coffee  to  the   plaintiffs,  to  be  paid  for  in  cash  on  the  17th   August  ; 

(g)  2  Barn.  &.  Aid  131.  et  vide  ante  146.  (h)  7  Taunt.  265. 

*150 


Chap.  1.]   What  Jlcts  vest  the  Property  in  the  Buyer-       150 

and  on  the  16ih  of  August,  he  requested  the  defendant  to  give  up  to  him  the  dock 
warrants,  or  orders  for  the  delivery  of  the  coffee,  which  the  defendant  refused  to 
do  unless  he  were  first  paid  his  debt ;  whereupon  Roebuck  showed  him  1000/.,  out 
of  which  he  said  the  defendant  should  be  paid  ;  but  that,  for  the  sake  of  ac- 
quiring credit  at  his  bankers'  he  wished  to  pay  them  this  sum,  and  immediately 
to  give  the  defendant  a  cheque  upon  them  for  530/.  the  amount  of  the  debt  due 
to  him.  The  defendant  acquiesced,  and  took  the  cheque,  and  wrote  at  the  foot 
of  the  delivery  notes  his  signature  to  an  order  for   the   delivery  of  the   above 

mentioned  goods  to ,  and  gave  them  on  the  same    day  to    Roebuck, 

who  on  that  clay  received  of  the  plaintiffs  the  price  thereof,  and  delivered  to 
them  the  delivery  notes  to  be  filled  up  by  themselves,  with  their  own  or  their 
agent's  name,  as  the  party  to  whom  the  goods  were  to  be  delivered.  The 
cheque  which  the  defendant  had  taken,  Roebuck  immediately  instructed  his 
bankers  not  to  pay  ;  and  upon  its  dishonour,  the  defendant,  before  the  delivery 
notes  had  been  presented  at  the  West  India  Docks,  gave  notice  there,  and  pre- 
vented the  delivery  of  the  goods  to  the  plaintiffs,  who  on  the  19th  August 
demanded  the  goods.  The  plaintiffs  insisted  that  the  property  in  the  coffee 
was  vested  in  them  by  the  indorsement  of  the  delivery  note  ;  for  that  such  was 
the  custom  of  this  trade,  established  ever  since  the  West  India  docks  had  been 
formed  ;  and  they  proved,  that  the  practice  prevails  of  transferring  these  doc- 
uments from  hand  to  hand,  by  indorsement,  as  a  symbolical  delivery  of  the  pro- 
perty, to  which  the  officers  of  the  West  India  docks  pay  attention  and  give  effect ; 
for  that,  upon  the  request  of  any  holder  of  such  delivery  notes  the  com- 
pany will  substitute  for  them  new  notes,  deliverable  to  the  holders  of  the  old 
notes.  It  was  also  proved,  that  persons  engaged  in  the  trade,  treat  and  consider 
these  notes  as  passing  the  property  by  indorsement.  The  jury  having  found  a  ver- 
dict for  the  plaintiffs,  the  case  came  before  the  Court  of  Common  Pleas,  on  a  mo- 
tion to  set  aside  the  verdict,  and  enter  a  non-suit,  which  the  Court  refused  to  do. 
And  Dallas  Ch.  J.  observed,  "  It  has  been  said,  that  it  would  be  inconvenient  if 
property  may  be  transferred  by  these  delivery  notes.  The  best  test  of  their 
convenience  is  the  use  of  them,  which  has  obtained  ever  since  these  docks  have 
been  erected.  Two  witnesses,  very  conversant  with  this  trade,  stated  that  there 
was  a  general  practice  prevalent,  to  receive  these  warrants  in  the  market,  and 
to  pay  for  the  goods  therein  specified,  without  going  to  the  dock-house  to  exam- 
ine whether  any  stop  was  put  on  them.  Without  saying  that  this  is  such  a  usage 
as  to  constitute  a  rule  of  law,  there  is,  in  the  particular  case,  enough  to  shew 
that  there  is  no  foundation  for  the  observation,  that  the  practice  will  be  pro- 
ductive of  inconvenience.  It  is  enough,  therefore,  to  say,  that  the  persons 
who  hold  these  notes  have  given  a  valuable  consideration  for  them,  and  that 
therefore,  they  are  entitled  to  the  property." 

So,  in  the  case  of  Manton  v.  Moore(i)  where  an  engineer  contracted  *with  a 
canal  company  to  build  locks  and  bridges  upon  their  canal ;  and  for  that  pur- 
pose brought  materials  to  the  wharf  of  the  company  on  the  canal,  after  which, 

(t)  7T.  R.  67. 

*151  *152 


152  Of  the  Vendor's  Lien  or  Right  [Part  II. 

being  in  arrear  to  the  company,  he  executed  a  bill  of  sale  to  them  of  the 
materials,  and  made  a  symbolical  delivery  of  a  halfpenny.  The  Court  held, 
that  the  bill  of  sale  was  fraudulent,  but  that  the  property  was  not  thereby  trans- 
ferred to  the  company  ;  for  as  the  goods  were  already  on  the  premises,  the  only 
mode  of  giving  possession  of  them  was,  by  such  a  symbolical  delivery  as  had 
actually  taken  place. 

Goods  purchased  by  an  agent  abroad,  and  put  on  board  vessels  belonging  to 
the  principal,  vests  the  property  in  him  ;  (94)  even  though  the  agent  sent  bills 
of  lading,  indorsed  in  blank,  to  his  agent  in  England,  with  instructions,  that  if 
the  plaintiff  did  not  accept  his  bills  of  exchange,  the  bills  of  lading  should  be 
endorsed  over  to  the  payees  of  the  bills  of  exchange  ;  which  was  accordingly 
done.  It  was,  however,  determined  that  these  proceedings  of  the  agent  did  not 
change  the  property  in  the  goods,  (k)  So,  where  timber  lying  at  a  wharf  or 
ware-house,  is  marked  with  the  initial  letter  of  the  buyer,  this  is  sufficient  to 
vest  the  property  absolutely  in  him.(Z)  But  a  symbolical  delivery  upon  a  con- 
tract for  the  sale  of  a  thing  not  in  existence  at  the  time,  passes  no  property.(wi) 
And  therefore,  if  an  order  be  given  for  the  building  of  a  barge,  the  property  in 
it,  will  rot  rest  in  the  purchaser  until  it  is  finished,  even  though  the  purchaser 
may  have  paid  the  whole  price  in  advance,  (n) 

2.  Of  the  Vendor's  Lien  or  Right  to  retain  Possession  of  the  Goods 
until  Paid  for.] — The  term  lien,  in  its  strict  and  legal  signification,  means 
the  exercise  of  a  qualified  right  to  retain  the  property  of  another  until  a  claim 
is  satisfied.  Strictly  speaking,  therefore,  it  is  a  contradiction  in  terms,  to  say  a 
man  has  a  lien  upon  his  own  goods  ;  for  he,  who  has  only  a  lien  on  goods,  can- 
not sell  them,  he  can  only  retain  them  till  the  original  price  is  paid.*  However, 
as  the  goods  when  sold,  are  partially  vested  in  the  buyer,  this  term,  when  used  in 
such  a  qualified  manner,  may  not  improperly  be  applied  to  the  present  subject ; 


(k)     Ogle    v.    Atkinson,  5    Taunt.  759.  1          (?i)    Mucklow  v.  Mangles,  1   Taunt.    318. 

Marsh.  323.  B  at  see  the  case  of  Woods  v.  Russel,  5  Barn. 

(I)  14East  Rep.  308.  312.  &Ald.  942. 

(m)  2  Barn.  &  Aid.  248.  *Per  Buller  Just.  6  East,  27.  in  notis. 


(94)  See  St.  Joze  Indiano,  1  Wheat.  208,  212,  el  seq.  Where  goods  were  shipped  by  Bri- 
tish merchants,  by  order  of  a  mercantile  house  in  this  country,  and  consigned  to  the  agent 
of  the  shippers  in  the  Untied  States,  because  at  the  time  of  the  shipment,  information  was 
received  that  the  American  house  had  dissolved  their  partnership,  and  the  shippers  had  no 
instructions  in  what  manner  to  direct  them  ;  held,  that  the  property  was  vested  in  the 
American  merchants,  at  the  time  of  the  shipment.  The  M errimack,  8  C ranch,  317,  327. 
So,  where  goods  were  shipped  in  England,  in  pursuance  of  orders  from  the  consignees  in 
this  country,  but  previous  to  the  execution  of  the  order,  the  shippers  became  embarrassed, 
and  assigned  the  goods  to  certain  bankers  in  England,  as  security  for  advancements,  with  a 
request  to  the  consignees  to  remit  the  amount  to  the  bankers,  and  the  bankers  also  made 
the  same  request,  the  invoice  being  for  account  and  risk  of  the  consignees,  but  stating  the 
goods  to  be  then  the  property  of  the  bankers  ;  it  was  held,  that  the  property  was  originally 
vested  in  the  consignees,  and  that  it  was  not  devested  by  the  intermediate  assignment,  which 
was  intended  merely  to  transfer  the  right  to  the  debt  due  from  the  consignees  to  the  ship- 
pers. The  Mary  fy  Susan,  1  Wheat.  25."  But,  where  goods  shipped,  are  to  be  sold  for  the 
joint  account  of  the  consignee  and  shipper,  or  of  the  latter  alone,  at  the  option  of  the  con- 
signee, the  right  of  property  does  not  vest  in  the  consignee,  until  he  has  made  his  election 
under  the  option  given  him.  The  Venus,  8  Cranch,  253,  275.  See  further,  The  Frances,  8 
Cranch,  354.    S.  C.  9  Cranch,  183. 


Chap.  1.]     To  Retain  Possession  of  Goods  Sold  152 

and  therefore  where  goods  have  been  sold,  and  there  has  been  a  part  payment 
of  the  price,  the  vendor  has  a  lien  or  right  to  retain  and  keep  possession  of  the 
goods,  until  the  whole  of  the  purchase  money  is  paid,  (o)  (95)  But  if  a  future 
day  of  payment  be  fixed  by  the  contract,  the  seller  thereby  waives  his  lien,  and 
the  buyer  has  a  right  to  take  the  goods  immediately  ;  and  the  seller  in  default  of 
payment  of  the  price  at  the  appointed  time,  has  a  remedy  by  action  against  the 
buyer.(p)  So,  where  the  seller  parts  with  the  possession  of  *the  goods,  he  loses 
his  lien  ;  and  it  will  not  be  revived  by  the  insolvency  of  the  purchaser,  who  has 
not  paid  for  the  goods,  (q)  But  where  goods  are  sold  to  be  paid  for  on  delivery  ; 
and  on  the  vendee  neglecting  to  take  away  the  goods,  and  pay  the  price,  the  ven- 
dor brings  an  action  against  the  vendee  for  goods  bargained  and  sold,  and  obtains 
a  verdict ;  the  vendor  may  still  retain  his  lien  on  the  goods  until  the  amount  is 
paid  :  and  they  cannot  be  taken  in  execution  by  the  sheriff,  in  an  action 
brought  against  the  vendee,  at  the  suit  of  one  of  his  other  creditors. (r)  So,  the 
insolvency  or  bankruptcy  of  the  buyer,  is  a  valid  defence  to  an  action  brought 
by  him  or  his  assignees,  for  the  nondelivery  of  goods  which  have  been  bargain- 
ed and  sold.(s) 

3.  Of  the  Vendor's  Right  to  stop  Goods  sold,  in  transitu,  upon 
the  Event  of  the  Insolvency  of  the  Buyer.] — It  is  reasonable  and  just, 
that  upon  every  sale  of  goods  the  vendor  should  either  receive  the  stipulated 
price,  before  he  has  parted  with  the  possession  of  them,  or  that  he  should  have 
power  to  take  and  retain  the  goods  when  sold  upon  credit,  or  so  much  of  them 
as  are  not  absolutely  delivered  over  to  the  vendee  in  the  event  of  his  insolven- 
cy. And  our  law,  which  is  founded  on  reason  and  justice,  has  provided, 
that  upon  every  contract  of  sale,  the  vendor  in  the  event  of  the  insolvency  of 
the  vendee,  whilst  the  goods  are  in  their  transit,  and  before  they  have  got  in- 
to the  actual  possession  of  the  latter,  may  stop  the  goods,  and  resume  the  pos- 
session of  them,  until  he  is  paid  the  price  for  which  they  were  agreed  to  be 
sold.(^)   (96)      This  right,  however,  when  exercised,  docs  not  rescind  the  con- 

-• 

(o)  Per  Lawrence,  Just.     3  East  Rep.  102,  (>-)  Houlditch  v.  Desanges,  2  Stark.  337. 

But  see  Dyer  29.  b.     6  East  614.  (5)  5  Terra  Rep.  218.  n. 

(/>)   Dyer  30.  a.  (t)  Vide  3  T.  R.  464.  and  see  6  East  Rep. 

(q)  3  P.  Wms.  185.  27.  in  notis. 

(95)  See  Palmer  v.  Hand,  1 3  J.  R.  434.,  wherein  the  principle  laid  down  in  the  text,  is 
applied  :  And  if,  during  the  course  of  delivery  of  goods  sold,  to  be  paid  for  on  delivery,  and 
before  the  delivery  is  completed,  the  vendee  sell  or  pledge  the  goods  to  a  third  person,  for  a 
valuable  consideration,  without  the  knowledge  of  the  original  vendor,  the  lien  of  the  latter 
for  the  price  of  the  goods,  will  not  be  affected,  and  he  may  recover  the  goods,  or  their  value, 
from  the  subsequent  purchaser.     Id. 

(96)  See  Stubbs  v.  Lund,  7  Mass.  Rep.  453.,  and  Ilshy  v.  Stubbs,  9  Mass.  Rep.  65., 
wherein  the  right  of  stoppage  in  transitu  is  fully  and  ably  discussed.  See  also  Scholfield  v. 
Bell,  14  Mass.  Rep.  40.  Wood  v.  Roach,  2  Dall.  180.  Howntt  %■  Co.  v.  Davis  $■  Chalmers,  5 
Munf.  34.  The  Merrimack,  Kinnuel  fy  Jllbert  and  W.  4-  J.  Wilkins,  Claimants,  S  Cranch 
317,  327.  Warren  v.  Sproule,  2  Marsh.  528.  Chapman  v.  Lalhrop,  6  Cowen,  110.  Parker 
4-  al.  v.  M'lyer  fy  al.  1  Des.  274.  The  doctrine  as  to  stoppage  in  transitu,  is  applicable  only 
to  cases  of  insolvency  ;  and  presupposes,  not  only  that  the  property  of  the  goods  has  passed 
to  the  consignee,  but  that  the  possession  is  in  a  third  person  during  the  transit.  It  cannot 
be  applied  to  a  case  where  the  actual  or  constructive  possession  is  in  the  shipper,  or  his  ex- 
clusive agents.     The  San  Jose  Indiano,  2  Gallie.  268,  294,  295.  S.  C.     1  Wheat.  208. 

20  *1S8 


153  Of  the   Vendor's  Right  [Part  II. 

tract  of  sale ;  and  therefore  upon  a  tender  of  the  price,  and  a  readiness  on  the 
part  of  the  vendee  to  perform  the  contract,  the  vendor  is  bound  to  deliver  up 
the  goods,  (w)  And  so,  on  the  other  hand,  if  the  vendor  offers  to  deliver  up 
the  goods  to  the  vendee,  he  may  afterwards  maintain  an  action  against  him  for 
the  price. (v) 

The  general  rule  of  law  upon  this   subject  is  very  clearly   laid  down  in  the 
case  of  Ellis  v.  Hunt,(w)  which   was  an  action  of  trover  ;  and  the  question 
came  before  the   Court  of  King's  Bench,    upon  a  special  case,    which  stated, 
that  on  the  31st  of  Oct.  1788,  Moore  the  bankrupt,  ordered  the  goods  in  ques- 
tion from  the  plaintiffs,  who  were  manufacturers  at  Sheffield ;  and  on  the  14th 
of  November  following,  they    were  sent  by  RoyWs   waggon,  directed  to  the 
bankrupt  in  London ;  the  waggon  being  overloaded,  the  cask  was  taken  out  at 
Stamford,  in   its   way   to   town,  and  put  into   the  defendant  Hunt's  waggon, 
which  brought  it  to  the  Castle  and  Falcon  Inn  in  London  on  the  22nd  of  No- 
vember 1788.     *The  plaintiffs  drew  a  bill  on  the  bankrupt  for  part  of  the  value 
of  the  goods,  which  bill  was  never  paid.     The  cask   and  files   were,  on  their 
arrival  in  town,  immediately   attached  by  Messrs.  Fenton  and  Company,  cred- 
itors of  the  bankrupt,  by  process  of  foreign  attachment  issued  out  of  the  May- 
or's Court  of  London ;  the  casks   remained  at  the  inn   charged  with   such  at- 
tachment, so  far  as  the   same  could  charge  it.     On  the   15th  of  November,  a 
docquet  was  struck    against  Moore;  and  on  the    18th,  a  commission  of  bank- 
ruptcy issued  against  him,  on  which  he  was  declared  a  bankrupt,  and  the  other 
defendants  were  chosen  his  assignees.     On  the  24th  of  November  a  provision- 
al assignment  was  executed  bv  the  commissioners   to  John  Wells,  the  messen- 
ger  under  the    commission,  who,    on   the   same   day,   demanded  the.  goods  in 
question  from  the  defendant  Hunt,  the  carrier,  and  put  his  mark  upon  the  cask, 
but  did  not  take  the   goods  away.      On  the  28th  of  November,  the   plaintiffs 
wrote  a  letter  to  the  agent  of  Roylc's  waggon,  directing  him,  in  case  the  goods 
were  not  delivered,  to   keep  them   in  his   warehouse,  as   they  had  heard  that 
Moore  was   become  a  bankrupt.     On  the    13th  of  December,  the  plaintiffs  de- 
manded the  cask  and  files  of  Moll,  the  master  of  the   Castle  and  Falcon,  and 
offered  to  pay  the    carriage,  and   to  indemnify  him,  which  Mott  refused  ;  and 
upon  the  attachment  being  withdrawn,  he    delivered  up  the  goods  to  the  defen- 
dants, the  assignees,  of  whom  they  have  since  been  demanded  ;  but  they  have 
refused  to  deliver  them  up.       The   Court  determined,  that  the  plaintiffs  were 
not  entitled  to  stop  the  goods  ;  and  therefore  could  not  maintain  the  present  ac- 
tion :  and  Lord  Kenyon  Ch.  J.  said,     The  doctrine  of  stopping  goods  in  transitu 
is  bottomed  on  the  case  of  Snee  v.  Prescot,(x)  where   Lord  Hardwicke  estab- 
lished a  very  wise  rule,  that  the  vendor  might  resume  the  possession  of  goods 
consigned  to  the  vendee  before  delivery,  in  case  of  the  bankruptcy  of  the  vendee. 
On  this  all  the  other  cases  are  founded.     There  have  indeed  been  cases,  where 


(u)  Ibid.  469.  Shipping.  351.      Whitlaker  on  Stoppage  in 

(t>)  Kyn    r  v.  Suwercropp,  1  Campb.  109.        transitu.     Long  on  Sales,  ch.  8. 
(:r  i  3  Term  Rep.  464.  see  also  Abbott  on        (x)  1  Atk.  Rep.  248. 


* 


Chap.  1.]       To  stop  Goods  Sold,  in  Transitu.  154 

nice  distinctions  have  been  taken  on  the  fact,  whether  the  goods  had  or  had  not 
got  into  the  possession  of  the  vendee  ;  but  they  all  profess  to  go  on  the  ground 
of  the  goods  being  in  transitu  when  they  were  stopped.     As  to  the  necessity 
of  the  goods  coming  to  the  "  corporal  touch"  of  the  bankrupt,  that  is  merely  a 
figurative  expression,  and  has  never  been  literally  adhered  to  ;  for  there  may 
be  an  actual  delivery  of  the  goods  without  the  bankrupt's  seeing   them ;   as,  a 
delivery  of  the  key   of  the  vendor's   ware-house  to  the  purchaser.     In  order  to 
decide  this  case,  it  is  material  to  attend  to  the  dates.     On  the  24th  of  November 
the  provisional  assignment  was  made  to  Wells,  who  on  the  same  day  demanded 
the  goods  in  question  of  the    defendant  Hunt,  and  put  his  mark  on   the  cask. 
Now  it  is  said,  that  this  should  have  been  done  by  the  bankrupt  himself:  but  by 
*the  assignment  he  was  stripped  of  all  his  property,  which  was  then  vested  in 
the  provisional  assignee  ;  therefore,  if  a   corporal  touch  were  necessary  to  de- 
feat the  right  of  the  vendors,  it  took  place  here.     It  is  true,  that  the  provisional 
assignee  did  not  alter  the  situation  of  the  goods ;  but  they  were  then  arrived  at 
the  end  of  their  destined  journey,  and  deposited  in  a   place  where  they  would 
have  remained  till  the  bankrupt  could  have  carried  them  to  a  warehouse  of  his 
own.     All  this  happened  on  the  24th  of  Nove?nber ;  and  it  was  not  until   the 
28th  of  that  month  that  the  vendor  wrote  to   countermand  the  delivery  of  the 
goods ;  but  that  was  too  late  ;  for  the  goods  were  no  longer  in  transitu  ;  they 
were  then  in  the  possession  of  the  party  to  whom  they  were  consigned,  or  of 
those  who  represented  him.     In  cases  of  this  sort,  we  cannot  but  feel  for  the 
situation  of  the  manufacturer,  but  it  is  such  as  they  are  necessarily  subject  to 
from  their  mode  of  dealing  :   however,  the  severity  of  the  case  cannot  induce  us 
to  break  through  the  rule  of  law."     And  Buller  Just,  said,  "  I  am  not  disposed 
to  disturb  or  to  lessen  the  authority  of  any  of  the  cases  that  have   been  decided 
on  this  subject ;  but  none  of  them  could  justify  the  vendor  in  this  case  in  taking 
back  the  goods.     In  the  former  cases  the  line  has  been  precisely  drawn ;  and 
they  all  turn  on  the  question,  whether  or  not  there  had  been  an  actual  delivery 
to  the  bankrupt.     It  is  of  the  utmost  importance  to  adhere  to  that  line  ;   for  if 
we  break  through  it,  we  shall  endanger  the  authority  of  the  cases   that  hive 
been  already  decided,  and  shall  fritter  away  the  rule  entirely.     In  one  of  the 
cases  cited,  Lord  Mansfield  took  the  distinction  between  an  actual   and  a  con- 
structive delivery  to  the  vendee.     There  may  be  cases  where,  as  between  the 
buyer  and  seller,  if  no  bankruptcy  or  insolvency  happen,  the  goods  are  consid- 
ered in  the  possession  of  the  buyer,  the  instant  tiiey  go  out  of  the  possession  of 
the  vendor ;  as  if  A.  order   goods  from  13.  to  be  sent  by  a  particular  carrier  at 
his  own  risk,  the  delivery  to  the  carrier  is  a  delivery  to   the   vendee   to   every 
other  purpose  ;  but  still  if  he  become  a   bankrupt,  before  the  carrier  actually 
deliver  them  to  him,  I  should  hold   that  the  vendor  might  seize  them  ;    because 
that  is  only  a  constructive  delivery  to  the  vendee  ;  but  an  actual  delivery  is  ne- 
cessary to  divest  the  vendor's  right  of  stopping   the   goods   in  transitu.     It  is 
clear,  that  bankruptcy  itself  does  not  put  an  end  to  the  contract ;  and  if  not,  the 
right  of  the  vendor  to  seize  goods  in  transitu  is  founded  only  on  equitable  prin- 

*155 


155  Of  the  Vendor's  Right  [Part  11. 

ciples.  It  is  a  right  with  which  he  is  indulged  on  principles  of  justice,  orig- 
inally established  in  courts  of  equity,  and  since  adopted  in  courts  of  law.  But, 
in  order  to  avail  himself  of  it,  he  must  stop  the  goods  before  they  get  into  the 
actual  possession  of  the  vendee  :  but  in  this  case  there  is  the  strongest  evidence 
of  the  consignee's  taking  actual  possession  of  the  goods,  by  his  assignee  put- 
ting his  mark  on  them.  It  was  said  by  the  plaintiff's  counsel,  that  the  carrier 
would  have  been  liable  in  an  action  by  the  vendor  ;  *but  he  would  not  have 
been  liable  in  the  character  of  carrier  ;  for  the  goods  had  got  to  the  end  of 
their  destined  journey  ;  but  he  would  have  been  liable  only  as  a  warehouse- 
keeper  ;  in  respect  of  the  recompense  which  he  was  to  receive  for  warehouse- 
room.  But  the  instant  the  provisional  assignee  put  his  mark  on  the  goods,  the 
warehouseman  became  the  agent  or  servant  to  the  bankrupt." 

Upon  a  complete  delivery  of  part  of  one   entire  cargo  to  the   consignee,  the 
transitus  is  ended,  and  the  consignee  cannot  stop  the  remainder.(y)     But  where 
a  quantity  of  iron  had  been   sold  and   sent  by  a  carrier,   who  had    actually 
delivered  part  of  them  on  the  wharf  of  the  vendee  ;  at  which  place,  however, 
the  iron  was  to  be  weighed  ;  but  hearing  of  the  insolvency  of  the  latter,  he  dis- 
continued a  further  delivery,  and  re-shipped  that  part  so   deposited  on  the  wharf 
into  his  barges,  and  detained  the  whole  for  his   freight :  The  Court  held,   that 
the  delivery  was  not  so  complete  as  to  take  away  the  vendor's  right  of  stoppage 
in  transitu.     Thus,  in  the  case  of  Crawshayv.  Eades,(z)  which  was  an  action 
of  trover  ;  and  the  facts  were,  that  on   the   26th  January  1822,  the  plaintiffs 
loaded  at  Brentford,  on  board  two  barges  belonging  to   the  defendant,  348  bars 
of  iron,  and  delivered  the  following  ticket,  "  Shipped  348  bars  of  iron,  weight 
205.  0.  20.  for  Messrs.  Homblowcr,  Brierly-hill,  near  Stourbridge,  from  R.  and 
W.   Crawshay  and  Co."     The  iron  was  sent  to  Homblowcr  on  sale.     On  the 
8th  February,  the  barges  with  the  iron  arrived  at  Hornblower's  works,   and   on 
the  9th  a  part  out  of  each  of  the  barges  was  landed  upon  his  wharf.     The  defen- 
dant then  hearing  that  Homblowcr  was  gone  off,  enquired  of  his  confidential  clerk, 
who  informed  him  that  it  was  all  over  with  the  Briefly   works,   and   told  him, 
that  he  the  defendant  had  better  take  the  iron  on  his  own  account ;  the  defen- 
dant in  consequence  re-shipped  the  part  that  had  been  landed,  and  conveyed  the 
whole  to  his  own  premises.      The  practice  had  been  to   deliver  to  the  carrier, 
when  the  iron  was  shipped  a  ticket  specifying  the  quantity,  and  upon  arrival  at 
Hornblower's  wharf  to  weigh  it,  and  to  give   to   the   carrier   a  receipt   for   the 
quantity  so  weighed  and  delivered.       Upon  this   evidence,  a  verdict  was  found 
for  the  plaintiff';  but    amotion   was  afterwards  made  for  a  new  trial,  founded 
upon  an  affidavit,  stating  that  it  had  never  been  the  usage  to  weigh  the  iron,  or 
give  a  receipt  for  it  at  Hornblower's  wharf  ;  and  the  witness,   who   at  the  trial 
gave   evidence  to  that  effect,  now  swore  that  it  was  by  mistake.       The  Court, 
however,  refused  the  rule,  and  determined  that  the  delivery  of  the  iron  had  not 
been  complete,  and  that  the  vendor's  right  to   stop  in  transitu  was   not  taken 


(y)  Slubeyx.  Hnitcard,  2  H.  Blac.  504.      1  (z)    1  Barn.  &Crcs.  131. 

New  Rep.  69. 

*156 


Chap.  1.]         To  stop  Goods  Sold,  in  Transitu-  156 

away.  And  Bayley  Just,  said,  "  There  can  be  no  doubt  that  wherever  there 
is  a  complete  delivery  of  part  of  one  entire  cargo  to  the  consignee,  the  transitus 
is  ended,  and  the  consignor  cannot  stop  the  remainder.  *But  in  this  case  there 
was  no  complete  delivery  of  any  part  of  the  iron  to  Hornblower  ;  the  goods 
were  in  different  barges,  and  a  part  of  the  iron  was  taken  out  of  each  barge, 
and  landed  upon  Hornblower' 's  wharf;  but  he  had  not  taken  possession  of 
it,  nor  was  it  weighed  ;  so  that  the  amount  of  the  freight  due  to  Eadcs  might 
be  ascertained.  Now,  independently  of  any  particular  usage,  a  carrier  has, 
by  the  common  law,  a  right  to  insist  that  the  goods  shall  be  weighed,  in  or- 
der, first,  that  it  may  be  ascertained  for  his  own  security,  that  he  has  delivered 
the  precise  quantity  entrusted  to  him  ;  and  secondly,  that  the  amount  of  the 
freight,  if  it  depend  upon  the  weight,  may  be  ascertained.  When  part  of  the 
iron  was  landed  upon  the  wharf,  it  might  more  properly  be  considered  as  in 
a  course  of  delivery,  than  as  actually  delivered.  By  placing  it  upon  the  wharf, 
the  carrier  did  not  mean  to  assent  to  Hornblower'' s  taking  it  away  without  pay- 
ing the  freight :  besides  a  carrier  has  a  lien  on  the  entire  cargo,  for  his  whole 
freight;  and  until  the  amount  is  either  tendered  or  paid,  the  special  property 
which  he  has  in  his  character  of  carrier  does  not  pass  out  of  him  to  the  ven- 
dee, unless,  indeed,  he  does  some  act  to  show  that  he  assents  to  the  vendee's 
taking  possession  of  the  property  before  the  freight  is  paid.  It  is  clear,  upon 
the  facts  given  in  evidence  at  the  trial,  that  the  carrier  never  did  assent  to 
Hornbloiver's  taking  possession  of  the  property  ;  for  he  re-ships  the  part  of  the 
iron  that  was  landed,  as  soon  as  he  is  informed  that  the  freight  is  not  likely  to 
be  paid.  In  order  to  divest  the  consignee's  right  to  stop  in  transitu,  there 
ought  to  be  such  a  delivery  to  the  consignee,  as  to  divest  the  carrier's  lien 
upon  the  whole  cargo.  I  am  of  opinion,  therefore,  that  the  entire  freight  not 
having  been  tendered  or  paid,  the  delivery  in  this  case  was  not  complete  as  to 
any  part ;  that  the  special  property  remained  in  the  carrier,  and  that  the  con- 
signor was  not  deprived  of  his  right  of  stoppage  in  transitu.'''' 

If,  however,  in  the  course  of  the  conveyance  of  goods  from  the  vendor  to  the 
vendee,  the  latter  be  allowed  to  exercise  any  act  of  absolute  ownership  over 
them,  this  is  sufficient  to  reduce  the  goods  into  his  actual  possession,  and  to  put 
an  end  to  the  vendor's  right  to  stop  them.(«)  So,  the  transit  may  also  be  put 
an  end  to,  either  by  the  goods  arriving  at  the  shop  or  warehouse  of  the  vendee, 
or  bv  being  taken  into  his  immediate  personal  possession  ;  and  in  either  case 
the  right  of  the  vendor  to  stop  the  goods  in  transitu  is  gone. 

Payment  of  part  of  the  price  of  goods  by  the  consignee,  does  not  take  away 
the  consignor's  right  to  stop  them  in  transitu,  (b)  So,  where  the  *vendee  accepts 
bills  of  exchange  for  the  price  of  the  goods,  and  becomes  bankrupt  before  the 
bills  of  exchange  are  paid,  the  consignor  may  stop  the  goods   in  transitu  ;  for 

(a)  Wright  v.  Laices,  4  Esp.  82.  Mills  sea,  under  a  bill  of  lading  ;  and  in  the  lattpr 
v.  Ball,  2  Bos.  &  Pul.  457.  Sed  vid.  Hoist  case  it  id  said,  that  the  consignor's  right  to 
v.  Pound,  1  Esp.  240.  ;  and  .lbbott  on  Ship-  stop  in  transitu  continues  till  the  termination 
ping   362.,    where  a  distinction  is  taken  be-     of  the  voyage. 

tw/een  the  carriage  of  goods  by  land  and  by         (b)  Hodgson  v.  Loy,  7  Term  Rep.  440. 

*157  *158 


158  Of  the   Vendor's  Right  [Part  II. 

though  the  bills  may  be  proved  under  the  commission,  that  would  only  amount 
to  a  part-payment ;  and  it  will  make  no  difference  though  the  vendor  may  have 
indorsed  the  bills  to  a  third  person,  (c)  But  in  the  case  of  Davis  v.  Reynolds,  (d) 
where  it  appeared  that  the  purchaser  of  goods  after  having  given  his  acceptance 
for  the  price  of  them,  and  before  the  bill  became  due,  and  while  the  goods  were 
in  transitu,  sold  them  for  a  valuable  consideration,  but  without  indorsing  the 
bill  of  lading  to  the  purchaser;  Lord  Etlenboroughiuled,  that  the  purchaser  had 
completed  his  title  to  the  goods  by  accepting  the  bill  of  exchange,  and  that  the 
sale  by  him  defeated  the  seller's  right  to  stop  the  goods  in  transitu. 

In  order  to  justify  a  right  of  stoppage  of  goods  in  transitu,  it  is  necessary 
that  the  consignee  should  become  bankrupt  or  be  insolvent :  for  if  goods  are 
sent  by  order  of  the  consignee,  on  his  account  and  at  his  risk,  and  the  consignee 
draws  bills  of  exchange  on  him  for  the  price,  and  indorses  and  transmits  the 
bills  of  lading,  the  consignor  cannot  take  possession  of  the  goods  at  the  place  of 
destination,  and  insist  upon  immediate  payment,  as  the  condition  of  delivery  ; 
the  consignee  being  willing  to  accept  the  bills,  and  not  having  failed  in  his  cir- 
cumstances, (e)  Goods  delivered  by  the  vendor  to  a  particular  wharfinger  or 
packer  named  by  the  vendee,  to  be  forwarded  to  the  latter,  may  be  stopped  in 
transitu  before  they  get  into  his  actual  possession.  (/)  And  notice  by  the  ven- 
dor to  a  wharfinger,  packer,  or  carrier,  not  to  deliver  the  goods  to  the  vendee, 
is  sufficient,  without  making  an  actual  seizure,  (g)  So,  the  right  of  a  consignor 
to  stop  goods  in  transitu  is  not  defeated  by  the  goods  being  attached  while  in 
their  transit,  by  process  out  of  the  Lord  Mayor's  Court,  at  the  suit  of  a  creditor 
of  the  consignee.  (A) 

So,  in  the  case  of  Buck  v.  Hatfield,(i)  where  goods  were  sold  free  on 
board  ;  and  upon  their  shipment,  the  agent  of  the  vendors  tendered  to  the  mate 
(the  captain  being  absent)  a  receipt,  by  which  the  goods  were  acknowledged  to 
be  shipped  on  account  of  the  vendors,  which  the  mate  kept,  but  refused  to  sign  ; 
and  on  the  following  day,  signed  bills  of  lading  to  the  order  of  the  vendees  :  it 
was  determined,  that  the  transit  was  not  at  an  end,  but  that  the  vendors,  on  the 
insolvency  of  the  vendees,  were  entitled  to  stop  the  goods  :  and  in  this  case 
Abbott  Ch.  J.  said,  "  If  the  delivery  on  board  the  vessel  to  the  vendees  had 
ever  been  completed,  the  transitus  would  have  been  at  an  end  ;  but  when  it 
was  made  at  first,  it  was  accompanied  by  the  demand  of  a  receipt  from  the 
mate,  who  represented  *the  captain.  Now,  it  was  important  for  the  vendors  to 
have  that  receipt,  for  so  long  as  they  retained  possession  of  it,  they  were  ena- 
bled to  interpose  a  delay  as  to  the  delivery  of  the  rum  to  the  vendees,  and  re- 
tain a  lien  upon  it.  The  captain  ought  not  to  have  signed  bills  of  lading  until 
that  receipt  had  been  handed  over  to  him  by  the  vendees,  after  having  been  de- 
livered to  them  by  the  vendors. 


(c)  Feist  v.  Wray,  3  East,  S3.  (?)  Lett  v.  Cowley,  7  Taunt   169. 

(</)  4CamPb.  267.  (*)  Smith  v.  Goss,  1  Campb.  282.  2  Bob. 

(e)  3   East  Rep.  585.  &  P"l-  457. 

(/)  Mills   v.    Ball,   2    Bos.   &  Pul.  457.  (£)  5  Barn.  &  Aid.  632. 

Locschman  v.  Williams,  4  Campb.  181. 
*159 


Chap.  1.]        To  stop  Goods  Sold,  hi  Transitu,  159 

If  the  consignor  consign  goods  to  be  sold  on  the  joint  account  of  himself  and 
the  consignee,  the  former  may  stop  the  goods  in  transitu  on  the  insolvency  of 
the  consignee.  (A)  So,  goods  deposited  at  the  king's  warehouse  on  their  arrival, 
on  account  of  the  duties,  may  be  stopped  by    the  consignor.  (I) 

When  part  of  a  large  quantity  of  goods  lying  in  bulk,  are  sold,  and  before  a 
delivery  can  take  place,  it  is  necessary  either  to  sort  or  weigh,  or  draw  off  the 
part  so  sold  from  the  mass  ;  the  vendor's  right  to  stop  them  continues  until  all 
those  acts  are  done  in  order  to  put  them  in  a  state  of  complete  delivery  ;  not- 
Avithstanding  the  vendee  may  be  vested  with  a  delivery  order,  and  although  such 
order  is  lodged  with  the  party  who  has  the  custody  of  the  goods  in  bulk  ;  and 
even  where  part  of  such  goods  may  happen  to  have  been  actually  delivered,  still 
the  remainder,  if  not  weighed  off,  &c.  may  be  stopped  in  transitu.{m)  But 
where  goods,  lying  at  a  wharf  or  warehouse,  are  sold,  and  are  in  a  state  fit  for 
immediate  delivery  without  requiring  any  thing  to  be  done  to  them,  and  a  de- 
livery order  is  given,  and  lodged  with  the  wharfinger  or  warehouseman ;  or 
where  the  vendee  is  charged  with  warehouse  rent,  or  where  a  key  of  a  ware- 
house or  any  other  symbolical  delivery  is  made  of  the  goods,  the  absolute  pro- 
perty is  vested  in  the  buyer,  and  the  right  of  stoppage  in  transitu  is  gone.(n) 
So,  the  putting  the  vendee's  mark  upon  goods  lying  at  a  wharf,  or  any  other 
act  showing  an  exercise  of  absolute  and  entire  dominion  over  them,  puts  an 
end  to  the  right  of  stoppage  in  transitu,  (o)  So,  where  the  vendee  has  no 
warehouse  of  his  own,  but  deposits  the  goods  at  the  warehouse  of  his  packer, 
the  transit  of  such  goods  is  at  an  end  upon  delivery  of  them  to  the  packer.(p) 
So,  where  goods  are  delivered  to  a  vendee  at  a  wharf,  who  afterwards  ships 
them,  the  right  of  stoppage  in  transitu  is  gone,  (q)  And  if  goods  have  so  far 
got  to  the  end  of  their  journey,  that  they  wait  only  for  new  orders  from  the 
purchaser  to  put  them  in  motion  again,  the  transit  is  at  an  end,  and  the  vendor 
cannot  stop  them  in  transitu,  (r) 

So,  the  transfer  of  a  dock  warrant  to  the  vendee  operates  constructively 
*as  a  transfer  of  the  property  in  the  goods  sold,  so  as  to  defeat  the  vendor's  right 
of  stoppage  in  transitu,  (s)  A  delivery  of  possession  to  the  vendee,  or  his  re- 
presentative, of  part  of  the  goods  sold  upon  an  entire  contract,  or  any  assent 
to  a  sub-sale,  will  be  considered  as  a  sufficient  delivery  to  determine  the  tran- 
sits as  to  the  whole,  (t) 

With  respect  to  the  right  of  stoppage  of  goods  in  transitu,  where  the  pro- 
perty passes  by  bill  of  lading,  the  general  rule  of  law  is,  that  the  consignee  of 
goods  by  the  assignment  of  a  bill  of  lading,  or  other  disposal  thereof  to  a  third 


(k)  Jfewsomv.   Thornton,  6  East  Rep.  17.  notis.  Et  ante,  136 

VK^0?1^  V-Fidd>  2  EsP-  lleP-  613-  (o)   Stovcldv.  Hughes,  14  East,  308. 

(m)   13  East  Rep.  525.     2  M.  &  S.  397.    1  (p)   Scott  v.  Pettit,  3  Bos.  &.  Pul.  469. 

Marsh,  252.     4  Campb.  237.     5  Taunt,  617.  (q)  Jfoble  v.  Mams,  7  Taunt.  59. 

Et  vide  ante  136.     As  to   what  shall  consti-  (?)  5  East,  175. 

tute  a  complete   delivery,  so  as  to  vest  the  (s)  Zwinger  v.  Samuda,  ante,  150.     Lucas 

absolute  property  in  the  buyer.  v.  Darrein,  7  Taunt.  278.     Spears  v.  Travers, 

(n)  3  Term  Rep.  468.     1  Campb.  452.    2  4  Campb.  251. 

Campb  243.     1    New  Rep.  69      7  Taunt.  (0  Hanson  v.  Meyer,   6  East,   614.     Sfo- 

278.    And  see  Holt's  Ni.  Pn.  Cas.  18.  22.  in  bey  v.  Heyward,  2  H.  Bl.  504. 

#160 


lbO  Of  the  Sale  and  Transfer  of  Goods     [Part  II. 

person  for  a  valuable  consideration,  may  refer  an  absolute  right  and  property 
upon  sueh  assignee,  indefeasible  by  any  claim  on  the  part  of  the  consignor  ;(97) 
subject,  however,  to  this  restriction,  that  the  assignment  should  be  made  bona 
fide  to  all  parties,  and  without  notice  to  the  assignee  that  the  vendee  is  insol- 
vent, (u)  But  if  there  be  no  consideration,  or  there  appear  any  fraud  in  the 
assignment  on  the  part  of  the  assignee,  with  a  view  not  only  of  depriving  the 
vendor  of  his  right  to  stop  the  goods  in  traiisitu,  but  also  of  the  price  of  the 
goods,  the  assignment  will  be  invalid  as  against  the  vendor,  (v)  So,  if  the  as- 
signee, though  for  valuable  consideration,  know  of  the  vendee's  insolvency  at 
the  time  of  his  accepting  the  assignment,  he  can  gain  no  legal  title  to  the  goods 
thereby,  as  against  the  vendor.(w) 

12.     OF    THE   SALE    AND    TRANSFER  OF  GOODS  BY  DELIVERY   OR  IN- 
DORSEMENT OF  A  BILL  OF  LADING. 

In  mercantile  transactions  between  merchants  residing  in  different  countries, 
or  at  ports  and  places  remote  from  each  other  in  this  country,  when  a  cargo  of 
goods  is  shipped  for  the  vendee  upon  a  contract  of  sale,  or  where  a  consign- 
ment is  made  to  a  factor  or  correspondent  for  sale,  the  vendor  or  consignor  usu- 
ally causes  a  bill  of  lading  to  be  made  out  in  three  parts,  each  of  which  is 
signed  by  the  captain  of  the  vessel  in  which  the  goods  are  shipped  ;  and  the 
consignor  generally  forwards  one  of  them  to  the  vendee  or  consignee,  and 
another  is  sent  on  board  the  ship  with  the  goods,  and  the  third  is  kept  by  the 
consignor  himself:  and  it  is  said  (x),  that  the  master  should  take  care  to  have 
another  part  for  his  own  use.  Now,  this  bill  of  lading  is  a  contract  by  the 
master,  on  behalf  of  himself  and  his  owners,  to  convey  the  goods  to  the  place 
of  destination,  and  to  make  a  true  and  right  delivery  thereof  either  to  the  con- 
signee or  his  assigns,  or  to  the  consignor  or  his  asssigns.  Sometimes  no 
person  is  named  as  consignee,  but  the  terms  of  the  instrument  are,  "  To 
be    delivered,    &c.    unto  order,    or  assigns," 

which  words  are  generally  understood  to  import  an  engagement  on  the 
part  of  the  master,  to  deliver  the  goods  to  the  person  to  whom  the  ship- 
per or  consignor  shall  order  the  delivery,  or  to  the  assignee  of  such 
person.(^)  And  it  is  observed,  (a)  that  bills  of  lading  sometimes,  espe- 
cially in  time  of  war,  contain  a  false  account  and  risk,  and  do  seldom,  if  ever, 
bear  upon  the  face  of  them  any  indication  of  the  purpose  of  the  indorsement. 
In  order  to  designate  the   kind  of  goods  shipped,    a  corresponding  mark  or 


(u)  Lickbanow  v.    Mason,    6  East,   28.  in  (to)  4  Campb.  31. 

notis,  2  East,  63.    S.  C.     Vertue  v.  Jewell,  4  (x)  Abbott  on  Shipping,  ch.  ii.  s.  3. 

Campb.  31.  (*)  Abbott  on  shipping,  218. 

(»)  Waring  v.  Cox,  1  Campb.  369.  Halo-  (a)  Per  Lord  Loughborough,  1  H.  Bl.  362. 
mons  v.  Nissen,  2  Term  Rep.  681. 

(97)  See  Hollingsworth  v.  Jfapier,  3  Caines,  182.  Hunn  v.  Bowne,  2  Caines,  38.  Walter 
v.  Ross,  C.  C.  April  1809,  MS.  Rep.  Whart.  Dig.  593.  Summeril  v.  Elder,  1  Binn.  101. 
Stubbs  v.  Lund,  7  Mass.  Rep.  453.    Ilsley  v.  Stubbs,  9  Mass.  Rep.  65. 

♦161 


Chap.  1.]  By  Bill  of  Lading.  161 

description,  with  those  put  upon  the  casks,  chests,  or  packages  on  board,  is  in- 
serted in  the  bills  of  lading. 

It  was  at  one  time  doubted  whether  the  indorsement  of  a  bill  of  lading:  in 
blank,  and  the  delivery  of  it  to  the  consignee,  transferred  the  legal  property  of 
the  goods  to  him,  and  to  an  indorsee ;  but  that  point  is  now  settled,  that  such 
a  transfer  does  vest  the  property  in  the  consignee,  or  bona  fide  indorsee  for  a 
valuable  consideration.  (98)  And  the  law  on  this  subject  was  most  ably  and 
clearly  stated  in  a  very  elaborate  and  learned  opinion  delivered  by  Buller  Just. 
in  the  House  of  Lords,  in  the  case  of  Lickbarrow  v.  Mason,  (b)  where  his  lord- 
ship, in  taking  a  review  of  the  previous  cases,  says,  "  that  though  Lord  Mans- 
field  at  one  time  thought  that  there  was  a  distinction  between  bills  of  lading  indor- 
sed in  blank  and  otherwise,  yet  he  afterwards  abandoned  that  ground.  And  in 
Salomons  v.  Nissen,  (2  Term  Rep.  674.)  the  bill  of  lading  was  to  order  or 
assigns,  and  the  indorsement  in  blank  ;  but  the  court  held  it  to  be  clear,  that 
the  property  passed.  He  who  delivers  a  bill  of  lading  indorsed  in  blank  to 
another,  not  only  puts  it  in  the  power  of  the  person  to  whom  it  is  delivered,  but 
gives  him  authority  to  fill  it  up  as  he  pleases  ;  and  it  has  the  same  effect  as  if  it 
were  filled  up  with  an  order  to  deliver  to  him."  And  upon  the  question,  whether 
at  law,  the  property  of  goods  at  sea  passes  by  the  indorsement  of  a  bill  of  lad- 
ing, his  lordship  said,  "  Every  authority  which  can  be  adduced  from  the  earli- 
est period  of  time  down  to  the  present  hour,  agree  that,  at  law,  the  property 
does  pass  as  absolutely  and  as  effectually  as  if  the  goods  had  been  actually 
delivered  into  the  hands  of  the  consignee.  In  1690,  it  was  so  decided  in  the 
case  of  Wiseman  v.  Vandcputl,  2  Vern.  203.  In  1697,  the  Court  determined 
again  in  Evans  v.  Marlett,  that  the  property  passes  by  the  bill  of  lading.  That 
case  is  reported  in  1  Ld.  Raym.  271.,  and  in  12  Mod.  156.,  and  both  books 
agree  in  the  point  decided.  Ld.  Raymond  states  it  to  be,  that  if  goods  by  a  bill 
of  lading  are  consigned  to  A.,  *A.  is  the  owner,  and  must  bring  the  action  ;  but 
if  the  bill  be  special,  to  be  delivered  to  A.,  to  the  use  of  B.,  B.  ought  to  bring 
the  action  ;  but  if  the  bill  be  general  to  A.,  and  the  invoice  only  shews  that 
they  are  on  account  of  B.,  (which  I  take  to  be  the  present  case)  A.  ought 
always  to  bring  the  action  ;  for  the  property  is  in  him,  and  B.  has  only  a  trust. 
And  Holt  Ch.  J.,  says,  the  consignee  of  a  bill  has  such  a  property,  as  that  he 

(6)  6  East  Rep.  20.     1  H.  Bl.  357.  2  Term  learned  judges  in  this  case,  has  been  confirm- 

Rep.  63.     In  this  case  the  judges  differed  in  ed  by  many  subsequent   cases  ;    particularly 

opinion;  and   no  final  judgment   upon   the  Cuming  v.  Brown,  9  East,  506.,  and  Newsom 

question  was  given.     But  the  law,  as  deliver-  v.  Thornton,  6  East  Rep.  17. 
ed  by   Mr.  Just.  Buller,   and  several  other 


(9S)  See  Chandler  v.  Belden,  13  J.  R.  157.  Ryberg  v.  SneU,C,  C.Oct.  1809,  MS.  Rep. 
Whart.  Dig.  593,  594.  A.  being  indebted  to  B.,  gave  him  as  security,  a  bill  of  lading  in- 
dorsed in  blank,  of  goods  shipped  to  a  foreign  port.  B.  took  no  measures  to  obtain  posses- 
sion of  the  goods.  C,  another  creditor,  without  notice  of  B.'s  right,  attached  the  goods, 
which  were  condemned  as  the  property  of  A.,  and  the  avails  were  received  by  C. :  Held, 
that  B.  lost  his  right  to  the  goods  by  his  negligence  ;  and  could  not  recover  the  proceeds  in 
the  hands  of  C.  Bank  of  North  America  v.  M'Call,  4  Binn.  371.  See  Dawes  v.  Cope,  4 
Binn.  258. 

21  *162 


162  Of  the  Sale  and  Transfer  of  Goods         [Part  II. 

may  assign  it  over :  and  Shower  said,  it  had  been  so  adjudged  in  the  Ex- 
chequer. In  12  Mod.  it  is  said,  that  the  Court  held  that  the  invoice  signified 
nothing ;  but  that  the  consignment  in  a  bill  of  lading  gives  the  property,  except 
where  it  is  for  the  account  of  another,  that  is,  where  on  the  face  of  the  bill 
it  imports  to  be  for  another.  In  Wright  v.  Campbell,  in  1767,  (4  Burr.  2046.) 
Lord  Mansfield  said,  "  If  the  goods  are  bona  fide  sold  by  the  factor  at  sea,  (as 
they  may  be  where  no  other  delivery  can  be  given,)  it  will  be  good,  notwith- 
standing the  stat.  21  Jac.  1.  The  vendee  shall  hold  them  by  virtue  of  the 
bill  of  sale,  though  no  actual  possession  be  delivered  ;  and  the  owner  can  never 
dispute  with  the  vendee,  because  the  goods  were  sold  bona  fide,  and  by  the 
owner's  own  authority."  His  Lordship  added,  (though  that  is  not  stated  in 
the  printed  report)  that  the  doctrine  in  Lord  Raymond  was  right,  that  the 
property  of  goods  at  sea  was  transferable.  In  Fearon  v.  Bowers,  in  1753, 
Lord  Ch.  J.  Lee  held,  that  a  bill  of  lading  transferred  the  property,  and  a 
right  to  assign  that  property  by  indorsement  ;  but  that  the  captain  was  discharg- 
ed by  a  delivery  under  either  bill.  In  Sneev.  Prescott,  in  1743,  (1  Atk.  245.,) 
Lord  Hardwicke  says,  "  Where  a  factor,  by  the  order  of  his  principal  buys 
goods  with  his  own  money,  and  makes  the  bill  of  lading  absolutely  in  the  prin- 
cipal's name,  to  have  the  goods  delivered  to  the  principal,  in  such  case  the 
factor  cannot  countermand  the  bill  of  lading,  but  it  passes  the  property  of  the 
goods  fully  and  irrevocably  in  the  principal."  Then  he  distinguishes  the 
case  of  blank  indorsement,  in  which  he  was  clearly  wrong.  He  admits  too, 
that  if  upon  a  bill  of  lading  between  merchants  residing  in  different  countries, 
the  goods  be  shipped  and  consigned  to  the  principal  expressly  in  the  body 
of  the  bill  of  lading,  that  vests  the  property  in  the  consignee.  In  Caldwell  v. 
Ball,  in  1786,  (1  Term  Rep.  205.)  the  Court  held,  that  the  indorsement  of  the 
bill  of  lading  was  an  immediate  transfer  of  the  legal  interest  in  the  cargo.  In 
Hibbcrt  v.  Carter,  in  1787,  (1  Term  Rep.  745.)  the  Court  held  again,  that 
the  indorsement  and  delivery  of  the  bill  of  lading  to  a  creditor,  prima  facie, 
conveyed  the  whole  property  in  the  goods  from  the  time  of  its  delivery. 
The  case  of  Godfrey  v.  Furzo,  (3  P.  Wras.  185.)  was  quoted  on  behalf 
of  the  defendant.  A  merchant  at  Bilboa  sent  goods  from  thence  to  B., 
a  merchant  in  London,  for  the  use  of  B.,  and  drew  bills  on  B.  for  the  mo- 
ney. The  goods  arrived  in  London,  which  B.  received,  but  did  not  pay  the 
money,  and  died  insolvent.  The  merchant  beyond  sea  brought  his  bill 
*against  the  executors  of  the  merchant  in  London,  praying  that  the  goods  might 
be  accounted  for  to  him,  and  insisting  that  he  had  a  lien  on  them  till  paid. 
Lord  Chancellor  says,  "  When  a  merchant  beyond  sea  consigns  goods  to  a 
merchant  in  London,  on  account  of  the  latter,  and  draws  bills  on  him  for  such 
goods,  though  the  money  be  not  paid,  yet  the  property  of  the  goods  vests  in 
the  merchant  in  London,  who  is  credited  for  them,  and  consequently  they  are 
liable  to  his  debts  ;  but  where  a  merchant  beyond  sea  consigns  goods  to  a  fac- 
tor in  London,  who  receives  them,  the  factor  in  this  case  being  only. a  servant 
or  agent  for  the  merchant  beyond  sea,  can  have  no  property  in  such  goods, 
neither  will  they  be  affected  bv  his  bankruptcy."  And  in  another  part  of  the 
•163 


Chap.   J.]  By  Bill  of  Lading.  163 

learned  Judge's  argument,  he   further  observes,  "  that   the   great   advantage 
which  this  country  possesses  over  most,   if  not   all  other  parts  of  the  known 
world,  in  point  of  foreign  trade,  consists  in  the  extent  of  credit  given  on  exports, 
and  the  ready  advances  made  on  imports ;  but  amidst  all  these  indulgences,  the 
wise  merchant  is  not  unmindful  of  his  true  interest,  and  the  security  of  his  cap- 
ital.     I  will  beg  leave  to  state  in  as  few  words  as  possible,  what  ie  a  very  fre- 
quent occurrence-  in  the  city  of  London.      A   cargo  of  goods   of  the   value  of 
2000/.  is  consigned  to  a  merchant  in  London,  and  the  moment  they   are  ship- 
ped, the  merchant  abroad  draws  upon  his  correspondent  here  to  the  value  of 
that  cargo,  and  by  the  first  post  or  ship  he  sends  him  advice,  and  incloses  the 
bill  of  lading.     The  bills  in   most   cases   arrive  before  the  cargo,  and  then  the 
merchant  in  London  must  resolve  what  part  he  will  take  ;  if  he  accepts  the  bills 
he  becomes  absolutely  and  unconditionally  liable ;  if  he  refuse  them,  he  dis- 
graces his    correspondent,    and  loses  his   custom  directly  ;  yet  to  engage  for 
2000/.  without  any  security  from  the  drawer,  is  a  bold  measure.       The   goods 
may  be  lost  at  sea,  and  then  the  merchant  here  is  left  to  recover  his  money 
against  the  drawer,  as  and  when  he  may.       The   question  then  with  the  mer- 
chant is,   how  can  I  secure  myself  at   all  events  ?  the  answer  is,   I  will  insure, 
and  then  if  the  goods  come  safe  I  shall  be   repaid  out  of  them,  or  if  they  be 
lost,  I  shall  be  repaid  by   the  underwriters  on  the  policy  ;  but  this   cannot  be 
done  unless  the  property  vest  in  him  by  the  bill  of  lading,  for  otherwise  his 
policy  will  be  void  for  want  of  interest,  and  an  insurance  in  the  name  of  the  for- 
eign merchant  would  not  answer  the  purpose.     This  is  the  case  of  the  mer- 
chant who  is  wealthy,  and  has  the  2000/.  in  his  banker's  hands,  which  he  can 
part  with,  and  not  find  any  inconvenience  in  so   doing.     But  there   is   another 
case  to  be  considered,  viz.   suppose  the  merchant  here  has   not  got  the  2000/., 
and  cannot  raise  it  before  he  has  sold  the  goods  ;  the  same  considerations  arise 
in  his  mind   as   in  the  former  case,   with  this  additional  circumstance,  that  the 
money  must  be  procured  before  the  bills  become  due,  then  the  question  is  how 
can  that  be  done  ?  If  he  have  the  property  in  the  goods,  he   can  go  to  market 
with   the  bill  of  *lading  and  the  policy,  as   was   done  in  Snee  v.  Prescolt,  and 
upon  that  idea  he  has  hitherto  had  no  difficulty  in  doing  so  ;  but  if  he  have  not 
the  property,  nobody  will  buy  of  him,  and  then  his  trade  is  undone.     But  there 
is  still  a  third  case  to  be   considered,  for  even  the   wary  and  opulent  merchant 
often  wishes  to  sell  his   goods  whilst    they  are    at  sea :  I  will  put  the  case  by 
way  of  example,  that  barilla  is  shipped  for   a   merchant  here   at   a  time  when 
there  has  been  a  dearth  of  that  commodity,  and  it  produces  a  profit  of  25/.  per 
cent.,  whereas  upon  an   average  it  does  not  produce  above  12/.  ;  the  merchant 
has  advices  that  there  is  a  great  quantity  of  that   article   in  Spain   intended  for 
the  British  market,  and  when  that  arrives  the  market  will   be   glutted,  and  the 
commodity  much  reduced  in  value  ;  he  wishes,  therefore,  to  sell  it  immediately, 
whilst  it  is  at  sea,  and  before  it  arrives,  and  the  profit  which  he  gets  by  that  is 
fair  and  honourable  ;  but  he  cannot  do  it  if  he  have  not  the  property  by  the  bill 
of  lading.     Besides,  a  quick  circulation  is  the  life   and  soul  of  trade,   and  if 

*164 


164      Of  the  Sale  and  Transfer  of  Goods,  fyc.  [Part  II. 

the  merchant  cannot  sell  with  safety  to  the  buyer,  that  must  necessarily  be  re- 
tarded." 

So,  in  Newsom  v.    Thornton, (c)  Lord  Ellcnborough  Ch.   J.  in  delivering  the 
judgment  of  the  Court  of  King's  Bench  upon  the  same  subject,  says,  "  A    bill 
of  lading,  indeed,  shall  pass  the  property  upon  a  bona  fide  indorsement  and  deliv- 
ery, where  it  is  intended  so  to  operate,  in  the  same  manner  as  a  direct  delivery 
of  the  goods  themselves  would  do,  if  so  intended,  but  it  cannot  operate  further. 
If  a  factor  is  in  possession  of  goods,   and  sells   them  bona  fide,  the    property 
passes  by  the  delivery  ;  but  not  where  he  means  only  to  pledge  them,  because 
it  is  beyond  the  scope  of  a  factor's  authority   to  pledge  the  goods  of  his  princi- 
pal.    The  symbol  then  shall  not  have  a  greater  operation  to  enable  him  to  de- 
fraud his  principal,  than  the  actual  possession  of  that  which  it  represents.    The 
principal  who  trusts  his  factor  with  the  power  to  sell  absolutely,  shall  so  far  be 
bound  by  his  act ;  but  the  defendants   shall  not  extend  the  factor's  act  beyond 
what  was  intended  at  the  time.     I  consider  the  indorsement  of  a  bill  of  lading, 
apart  from  all  fraud,  as  giving  the  indorsee  an  irrevocable,  uncountermandable 
right  to  receive  the  goods,  that  is,  where  it  is  meant  to  be  dealt  with  as  an  as- 
signment of  the  property  in   the  goods,  but  not  where  it  is  only  meant  as  a  de- 
posit by  one   who  had  no  authority  to  do  so.     And   Lawrence  Just,  said,  "  In 
the  case  of  Lickbarrow  v.  Mason,  some  of  the  Judges  did  indeed  liken  a  bill  of 
lading  to  a  bill  of  exchange,  and  consider  that  the  indorsement  of  one  did  con- 
vey the  property  in  the  goods  in  the  same   manner  as  the  indorsement  of  the 
other  conveyed  the  sum  for  which  it  was  drawn.       But  when  the  case  was  be- 
fore the  Exchequer  chamber,  there  was  much  argument  to  shew,  that  in  itself 
the  indorsement  of  a  bill  of  lading  was  no   transfer  *of  the  property,  though  it 
might  operate  as  such,  in  the  same  manner  as   other  instruments   may   be   evi- 
dence of  the  transfer  of  property;  as,  if  goods  be  sold  by  a  merchant  abroad  to 
his  correspondent  here,  and  the  bill  of  lading  be  sent  to  him  indorsed,  to  deliver 
the  goods  to  the  vendee  or  his  order ;  there  the  transfer  of  the  goods  may  be  evi- 
denced by  such  indorsement,   and  if  the  vendee  part  with  the   property  in  the 
goods,  while  they  are  yet  in  transitu,   and  before  his  property  in  them  is   de- 
vested by  the  vendor's  stopping  them  in  transitu,  and  which  assignment  of  the 
vendee's  property  may  be  evidenced  in  like  manner  by  his  indorsement  to  ano- 
ther, then,   according  to   Lickbarrow  v.   Mason,  tlie  original  vendor's  right  to 
stop  them  in  transitu  would  be  devested.     Therefore,  all  that  the  case   seems 
to  have  decided,  is,  that  where  the  property  in  the  goods    passed  to  a   vendee, 
subject  only  to  be  devested  by  the  vendor's  right  to  stop  them  while  in  transi- 
tu ;  such  right  must  be  exercised,  if  at  all,  before  the  vendee  has   parted  with 
the  property  to  another  for  a  valuable  consideration,   and  bona  fide,  and  by  in- 
dorsement of  the  bill  of  lading  giving  him  a  right  to  recover  them." 

Where  there  are  several  bills  of  lading,  the  person  [who  first  "gets  one    of 
them  by  a  legal  title  from  the  owner  or  shipper  has  a   right   to  the   consign- 


ee) 6  East  Rep.  41. 
165 


Chap.  1.]      Of  Sales  in  Fairs  and  Markets  Overt.       165 

merit,  (d)  So,  where  a  bill  of  lading  has  been  indorsed  bona  fide  as  a  security 
for  a  debt  due  to  the  indorsee  from  the  consignee,  the  property  in  the  goods 
mentioned  in  the  bill  of  lading  passes  to  the  indorsee,  even  though  it  should  ap- 
pear that,  at  the  time  of  the  indorsement,  he  knew  the  consignee  had  not  paid 
for  them.(e)  A  bill  of  lading,  however,  if  given  before  the  goods  are  shipped, 
is  deemed  fraudulent ;  and  the  indorsement  of  such  a  bill  will  not  legally  pass 
the  property  in  the  goods  even  to  a  bona  fide  indorsee. (/) 

The  property  in  goods  for  which  the  master  of  a  ship  has  given  bills  of  lad- 
ing, may  be  transferred  by  delivery,  without  indorsing  the  bill  of  lading ;  and 
such  transfer  will  be  good  against  all  the  world,  except  a  bona  fide  indorsee 
for  a  valuable  consideration,  (g)  But  no  property  passes  even  by  indorsement 
without  a  valuable  consideration.  (A) 

We  have  before  seen,  that  where  an  agent  had  purchased  goods  at  Riga  for 
his  principal  in  England,  and  such  goods  were  shipped  on  board  the  principal's 
own  vessel  as  his  goods  ;  though  the  agent  sent  bills  of  lading,  indorsed  in  blank, 
to  his  correspondent  in  England,  with  instructions  that  if  his  principal  did  not 
accept  his  bills  of  exchange,  the  bills  of  lading  should  be  indorsed  over  to  the 
payees  of  the  bills  of  exchange,  which  was  accordingly  done  ;  yet  it  was  held, 
that  the  shipment  of  the  goods  passed  the  property  absolutely  in  the  vendee,  it 
being  his  own  ship,  and  rendered  the  indorsement  of  the  bill  of  lading  whol- 
ly inoperative,  (i)  *So,  where  the  consignor  of  goods  advised  the  consignee 
by  letter ,  that  he  had  chartered  a  certain  ship  on  his  account,  and  inclosed 
an  invoice  of  the  goods  laden  on  board,  which  were  then  expressed  to  be  for 
account  and  risk  of  the  consignee,  and  also  a  bill  of  lading  in  the  usual  form, 
expressing  the  ^delivery  to  be  made  to  order  or  assigns,  he  or  they  paying 
freight  for  the  said  goods  according  to  charter-party ;  and  the  letter  of  advice 
also  informed  the  consignee,  that  the  consignor  had  drawn  bills  on  him  at  three 
months  for  the  value  of  the  cargo :  it  was  determined  by  the  Court  of  King's 
Bench,  that  the  invoice  and  the  bill  of  lading  sent  to  the  consignee,  and  the  de- 
livery of  the  goods  to  the  captain,  vested  the  goods  in  the  consignee,  subject 
only  to  be  devested  by  the  consignor's  right  to  stop  the  goods  in  transitu  in 
case  of  the  insolvency  of  the  consignee,  (j) 

13.  OF  THE  SALE   OF  GOODS,  &c.   IN  FAIRS  AND  MARKETS 

OVERT. 

On  this  subject  the  general  rule  of  law  is,  that  all  sales  and  contracts  for  any 
thing  vendible  in  fairs  or  markets  overt  (i.  e.  open  markets,)  and  for  which  a  val- 
uable consideration  is  bona  fide  given  by  the  vendee,  is  not  only  good  as  between 
the  contracting  parties,  and  transfers  a  complete  property  in  the  article  sold,  but 

(rf)    Caldwell  v.  Ball,  1  Term  Rep.  205.  (g)  Nathan  v.  Giles,  5  Taunt.  558. 

(e)   Cumins;  v.  Brown,  9  East  Rep.  506.  (A)    Waring  x.  Cox,  1  Campb.  369. 

1  Campb.  104.  (t)  Ante,  152. 

(/)   Osey  v.  Gardner,  Holt,Ni.  Pri.  Cas.        (j)   Walley  v.  Montgomery,  3  East  Rep. 

405.  585. 

*16G 


165  Of  Sales  in  Fairs  and  Markets  Overt.  [Part  II. 

is  also  binding  against  all  persons,  except  the  king,  whether  infants,  femes  covert, 
idiots  or  lunatics,  persons  beyond  sea,  or  in  prison,  and  whether  they  are  possess- 
ed in  their  own  right,  or  as  executors  or  administrators  ;  and  whether  any  toll 
be  paid  to  the  owner  of  the  market  or  not,  and  however  improperly  the  vendor 
may  have  possessed  himself  of  the  goods,  (k)  (99)  And  Mr.  Just.  Black- 
stone  well  observes,  "  That  if  upon  sales  of  this  description  a  bona  fide 
purchaser  was  not  to  be  made  secure  of  his  purchase,  all  commerce  between  man 
and  man  must  soon  be  at  an  end."  Fairs  and  markets  overt  are  generally 
held  on  special  days  provided  for  particular  towns  by  charter  or  prescription  ; 
but  in  London  every  day,  except  Sunday,  is  market-day.(Z)  The  market-place, 
or  spot  of  ground  set  apart  by  custom  for  the  sale  of  particular  goods,  is  also 
in  the  country  the  only  market  overt ;  (m)  but  in  London  every  shop  in  which 
goods  are  exposed  publicly  to  sale,  is  market  overt  for  such  things  only  as 
the  owner  professes  to  trade  in.  (n)  But  a  sale  of  goods  in  a  shop  in  the  Strand, 
or  elsewhere  out  of  London,  has  been  said  not  to  alter  the  property,  (o)  But 
Lord  Hardwicke  appears  to  have  considered,  that  where  the  transaction  is  per- 
fectly fair  on  the  part  of  the  vendee,  though  the  dealing  is  out  of  the  pre- 
cincts of  London,  great  allowances  ought  to  be  made  in  analogy  to  the 
above-mentioned  customs ;  and  therefore,  that  the  property  of  goods  may  be 
*changed  and  effectually  transferred  to  the  buyer  by  a  bona  fide  sale  in  a  shop 
out  of  London,  whether  the  shopkeeper  is  the  vendor  or  vendee,  if  the  goods 
are  of  the  kind  in  which  he  trades,  (p)  And  the  same  privilege  may  by  cus- 
tom be  extended  to  a  shop  in  Bristol,  or  elsewhere,  (q)  But  a  wharf  in  Lon- 
don is  not  within  the  custom,  and  is  not  a  market  overt  for  articles  brought 
there:  and  therefore  where  goods  were  bona  fide  purchased  at  a  public  wharf, 
but  the  true  owner  afterwards  claimed  them,  and  brought  trover  against  the 
vendee,  it  was  held,(r)  that  he  was  entitled  to  recover,  because  the  place  of 
sale  was  not  a  market  overt,  and  consequently  no  property  passed.  And  so, 
in  the  commentaries  upon  the  laws  of  England,{s)  it  is  said,  that  "  if  my  goods 
are  stolen  from  me,  and  sold  out  of  market  overt,  my  property  is  not  altered, 
and  I  may  take  them  wherever  I  find  them."  So,  where  an  agent  pawns  the 
goods  of  his  principal,  the  latter  may  maintain  trover  against  the  pawnbroker, 
without  either  tendering  the  duplicate  according  to  the  stat.  39  &  40  Geo.  3. 
c.  99.  s.  5.,  or  the  amount  and  interest  for  which   the  goods    are  pledged,  (t) 


(k)  2    Inst.  713.  220.  Com.  Disr.  tit.  Mar-  (7)  But    see  Moore,  625.  Com.  Dig.  tit. 

ket.  E.  Bac.  Abr.  tit.  Fairs  and  Markets,  E.  Market.  E. 

(/)  Cro.  Jac.  68.  (r)    IVilkinson  v.    King,  2    Campb.   336. 

(m)  Godb.  131.  Moore,  625. 

(n)   5  Rep.  85.     12  Mod.  521.  (*)  2  Bl.  Com.  449.  Bacon's  Use  of  the 

(0)   Anon.  12  Mod.  521.  Law.  158. 

(/))  Harris  v.  Shaio,   Cas.   Temp.  Hardw.  (t)  Ptel  v.  Baxter,  1  Stark.  472. 
349. 


(99)  The  common  law  maxim,  that  sales  of  chattels  in  market  overture  conclusive  as  to 
title,  has  not  been  adopted  in  this  country.  See  Hosack  v.  Weaver,  1  Yeates,  478.  Hardy 
v.  Metzgar,  2  Yeates,  347.  Easton  v.  Worth%ngton,  5  Serg.  &  R.  130.  Mowrey  v.  Walsh,  8 
Cowen,  233.     Wheelwright  v.  Depeyster,  1  J.  R.  471.     Dame  v.  Baldwin,  8  Mass.  Rep.  518. 

*167 


Chap.  1.]     Of  Sales  in  Fairs  and  Markets  Overt.         167 

And  it  is  expressly  provided  by  statute  1  Jac.  1.  c.  21.,  that  the  sale  of  any 
goods  wrongfully  taken  to  any  pawnbroker  in  London,  or  within  two  miles 
thereof,  shall  not  alter  the  property  ;  for  this  being  usually  a  clandestine 
trade,  is  therefore  made  an  exception  to  the  general  rule.  And  even  in  mar- 
kets overt,  if  the  goods  be  the  property  of  the  king,  such  sale  (though  regular  in 
all  other  respects,)  will  in  no  case  bind  him  ;  although  it  binds  infants,  feme  co- 
verts, idiots  or  lunatics,  and  men  beyond  sea  or  in  prison  ;  or  if  the  goods  be 
stolen  from  a  common  person,  and  then  taken  by  the  king's  officer  from  the 
felon,  and  sold  in  open  market,  still  if  the  owner  has  used  diligence  in  prosecut- 
ing the  thief  to  conviction,  he  loses  not  his  property  in  the  goods.  So,  like- 
wise, if  the  buyer  knoweth  the  property  not  to  be  in  the  seller  ;  or  there  be 
any  other  fraud  in  the  transaction ;  if  he  knoweth  the  seller  to  be  an  infant  or 
feme  covert,  not  usually  trading  for  herself:  if  the  sale  be  not  originally  and 
wholly  made  in  the  fair  or  market,  or  not  at  the  usual  hours  ;  the  owner's  prop- 
•  erty  is  not  bound  thereby.(w)  If  a  man  buys  his  own  goods  in  a  fair  or  market, 
the  contract  of  sale  shall  not  bind  him  so  that  he  shall  render  the  price,  unless  the 
property  had  been  previously  altered  by  a  former  sale.(r)  And  notwithstand- 
ing any  number  of  intervening  sales,  if  the  original  vendor,  who  sold  without 
having  the  property,  comes  again  into  possession  of  the  goods,  the  original 
owner  may  take  them,  when  found  in  his  hands  who  was  guilty  of  the  first 
breach  of  justice,  (w)  *By  which  wise  regulations,  the  common  law  has  secured 
the  right  of  the  proprietor  in  personal  chattels  from  being  devested,  so  far  as 
was  consistent  with  that  other  necessary  policy,  that  purchasers,  bona  fide,  in  a 
fair,  open,  and  regular  manner,  should  not  be  afterwards  put  to  difficulties  by 
reason  of  the  previous  knavery  of  the  seller. 

But  there  is  one  species  of  personal  chattels,  in  which  the  property  is  not 
easily  altered  by  sale,  without  the  express  consent  of  the  owner,  and  those 
are  horses,  (a:)  For  a  purchaser  gains  no  property  in  a  hoise  that  has  been 
stolen,  unless  it  be  bought  in  a  fair  or  market  overt>  according  to  the  directions 
of  the  statute  2  P.  &  M.  c.  7.  and  31  Eliz.  c.  12.,  by  which  it  is  enacted,  "  that 
the  horse  shall  be  openly  exposed,  in  the  time  of  such  fair  or  market,  for  one 
whole  hour  together,  between  10  in  the  morning  and  sun-set,  in  the  public 
place  used  for  such  sales,  and  not  in  any  private  yard  or  stable  :  and  afterwards 
brought  by  both  the  vendor  and  vendee  to  the  book-keeper  of  such  fair  or 
market  ;  that  toll  be  paid,  if  any  be  due  ;  and  if  not  one  penny  to  the  book- 
keeper, who  shall  enter  down  the  price,  colour,  and  marks  of  the  horse,  with 
the  names,  additions,  and  abode  of  the  vendee  and  vendor  ;  the  latter  being 
properly  attested.  Nor  shall  such  sale  take  away  the  property  of  the  owner, 
if  within  six  months  after  the  horse  is  stolen,  he  puts  in  his  claim  before  some 
magistrate  where  the  horse  shall  be  found ;  and  within  40  days  more,  prove 
such  horse  his  property  by  the  oath  of  two  witnesses,  and  tenders  to  the  person 
in  possession  such  price  as  he  bona  fide  paid  for  him  in  market  overt  ;  and   in 


(m)  2  Inst.  713,  714.  (w)  2  Insl.  713. 

(t>)  Perk.  s.  93.  (x)  2  Inst.  719. 

*168 


168    Of  Frauds  and  Deceit  in  the  Sale  of  Goods.  [Part  II. 

case  any  one  of  the  points  before  mentioned  be  not  observed,  such  sale  is 
utterly  void  ;  and  the  owner  shall  not  lose  his  property,  but  at  any  distance  of 
time  may  seize  his  horse,  or  bring  an  action  for  him."(y)  ^  was  once  decided, 
that  the  vendor  entering  a  wrong  name  in  the  book  of  the  market,  would  not 
invalidate  the  sale  of  a  horse  in  market  overt  within  this  statute  5(0)  but  that 
decision  has  been  since  overruled  ;  and  it  seems  now  to  be  settled,  that  the 
property  would  not,  under  such  circumstances,  be  altered,  (a) 

14.  OF  FRAUDS  AND  DECEIT  IN  THE  SALE  OF  GOODS  ;  AND  OF  A  DE- 
LIVERY OBTAINED  UNDER  FALSE  PRETENCES :  ALSO  OF  THE  VEN- 
DOR'S RIGHT   TO  FOLLOW  AND  SEIZE  THEM. 

All  contracts  which  are  infected  with  fraud,  are  void  both  at  law  and  in  eq- 
uity ;  for  the  basis  of  all  dealings  ought  to  be  good  faith,  (b)  And  therefore 
where  an  agent  of  the  vendor  of  a  picture,  knowing  that  the  vendee  labours 
under  a  delusion  with  respect  to  the  picture,  which  materially  influences  his 
judgment,  permits  him  to  make  the  purchase  without  removing  that  delusion, 
the  sale  is  void.  So,  although  a  ship  be  sold  under  these  terms,  viz.,  "  to  be 
taken  with  all  faults,"  the  vendor  cannot  avail  himself  of  that  stipulation,  if  he 
knew  of  any  secret  defects  in  her,  and  used  means  to  prevent  the  purchaser 
from  discovering  them  ;  or  made  a  fraudulent  representation  of  her  condition  at 
the  time  of  the  sale.  (100)  But  where  A.  sells  to  B.  a  bowsprit,  which  at  the 
time  of  sale  appears  to  be  perfectly  sound,  but  which,  after  being  used  for 
some  time,  turns  out  to  be  rotten  ;  in  the  absence  of  fraud,  A.  is  entitled  to  re- 
cover from  B.  what  the  bowsprit  was  apparently  worth  at  the  time  of  de- 
livery.^) 

If  a  trader  is  induced  to  supply  goods  to  a  minor  upon  a  fraudulent  rep- 
resentation by  his  father,  that  he  is  about  to  relinquish  his  business  in  favour 
of  his  son,  the  father  is  liable,  he  having  interfered  with  the  proceeds  of  the 
goods.  Thus,  in  the  case  of  Biddle  v.  Levy,  (d)  which  was  an  action  of  as- 
sumpit  for  goods  sold  and  delivered  brought  by  the  plaintiffs,  who  were  manu- 
facturers of  glass  at  Birmingham  against  the  defendant,  a  trader  in  London, 
for  goods  sold  and  delivered.  And  it  appeared  at  the  trial,  that  the  plaintiffs 
had  dealt  with  the  defendant  for  some  time  previous  to  the  period  when  the  de- 
fendant informed  the  plaintiffs  that  he  was  about  to  retire  from  business,  and 
that  his  son  Samuel  Levy  would  succeed  him;  he  added  that  he  should  keep  a 
watchful  eye  over  him,  and  afterwards  introduced  him  personally  to  the  plaintiffs. 
Upon  this  representation,  the  plaintiffs  supplied  the  son  Samuel  Levy  with  goods 


(y)  2  Blac.  Com.  450.  (6)   Vid.  Ante,  58. 

(r)   Wilkes  v.  Morefoots,  Cro.  Eliz.  86.  (c)  Vide  Ante,  121. 

(a)  Gibb's  case,  Owen  27.   and  1  Leon.  (d)  1  Stark.  20. 
158. 


(100)  See  Fleming  v.  Slocum,  18  J.  R.  403. 
*169 


Chap.  I.J  And  of  a  Delivery  obtained  by  false  Pretences.  169 

to  the  amount  of  800/.  'I'he  plaintiffs  contended,  that  though  the  credit  was 
given  to  the  son,  yet,  that  under  the  circumstances  the  father  was  liable  on  the 
ground  that  his  conduct  was  fraudulent ;  the  son  at  the  time  the  goods  were  sup. 
plied  being  a  minor  about  the  age  of  17  ;  and  that  the  representation  which  the 
father  made  was  false,  and  intended  for  the  purpose  of  evading  all  responsibi- 
lity- Gibbs  Ch.  J.  in. summing  up  the  case  to  the  jury,  informed  them,  "  That 
if  the  father  had  falsely  represented  to  the  plaintiffs,  that  he  was  about  to  recede 
from  business  and  place  his  son  in  his  shoes,  in  order  that  the  plaintiffs  might 
have  no  one  to  resort  to,  who  was  responsible,  he  was  liable  in  the  present  ac- 
tion, whether  in  fact  he  had  a  secret  interest,  conjointly  with  the  son,  or  the  son, 
contrary  to  the  defendant's  representation,  had  no  interest  whatsoever  in  the 
profits.  On  the  first  supposition,  the  defendant,  would  be  liable  as  a  co-partner 
with  his  son,  since  he  had  not  pleaded  in  abatement ;  on  the  second,  he  would 
be  liable  wholly  as  principal ;  having  taken  into  his  own  hands  that  fund  out  of 
which  the  creditors,  who  trusted  the  son,  might  naturally  expect  to  be  paid." 
His  lordship,  in  conclusion,  informed  the  jury,  "that  the  whole  case  turned  up- 
on the  representation  made  by  the  defendant  ;  that  if  they  were  of  *  opinion  that 
the  representation  was  false  and  fraudulent,  they  ought  to  find  for  the  plaintiffs ; 
if,  on  the  contrary,  they  believed  that  it  was  made  bona  fide,  they  would  find 
for  the  defendant."     The  jury  found  a  verdict  for  the  plaintiffs.  (101) 

So,  where  a  man  had  fraudulently  induced  a  trader  to  sell  goods  to  a  third 
person,  with  a  view  of  obtaining  to  himself  the  proceeds  upon  a  resale,  he  was 
held  liable  to  the  trader  for  the  value  of  the  goods.  Thus,  in  the  caseofJ.6- 
botts  v.  Barry, (d)  which  was  an  action  for  goods  sold  and  delivered,  and  for 
money  had  and  received.  The  following  case  in  substance  was  proved  at  the  trial. 
Phillips  being  indebted  to  the  defendant,  he,  for  the  purpose  of  discharging  the 
debt,  procured  wines  from  the  plaintiffs  by  a  string  of  contrivances,  which 
amounted  to  a  gross  fraud  ; 'paying  the  plaintiffs  only  half  the  price  of  the  wines, 
and  giving  a  bill  of  exchange,  which  was  of  no  value,  for  the  residue.  In 
these  contrivances,  the  defendant  was  prime  mover  and  participator,  and  furnish- 
ed Phillips  with  the  money  to  pay  in  part ;  the  wines  were  then  under  defen- 
dant's direction  and  brokerage,  and  sold  in  Phillip's  name  to  Bunyan,  who  ac- 
cepted a  bill  drawn  by  Phillips  for  the  amount,  which  Phillips  immediately  in- 
dorsed to  the  defendant.     The  jury  found  a  verdict  for    the  plaintiffs,  on    the 


(</)2Brod.  &  Bin?.  369.  5  Mo.  93.  and  see  also  Hill  v.  Perrott,  3  Taunt.    Ren.  274.  and 
Thompson,  v.  Bond,  1  C  ampb.  4. 


(101)  False  and  fraudulent  representations  respecting  the  credit  of  a  third  person,  which 
indues  a  trader  to  trust  him,  it' any  loss  accrue,  will  support  an  action  on  the  case  for  deceit 
Upton  v.  Vu.il,  6  J.  R.  181.  Ward.  v.  Center,  3  J.  R.  271.  Wise  v.  Wilcox,  1  Day,  22  Hart 
v.  Talhnadgc,  2  Day,  331.  Lang  v.  Lee,  3  Rand.  410.  Although  an  action  will  lie  for  a 
false  representation  of  the  credit  of  a  third  person,  whereby  the" plaintiff  is  induced  to  trust 
h!m>  a"d  sustains  injury  ;  yet,  if  A.,  by  parol,  promise  to  indorse  the  note  of  B.,  if  the 
plaintiff  will  sell  and  deliver  to  him  certain  goods,  and  the  goods  are  accordingly  delivered  • 
A.  is  not  liable,  on  the  ground  of  his  promise,  to  an  action  of  deceit ;  thoucrVhe  knew  at 
the  time,  that  B.  was  insolvent.     Gatlager  v.  Brunei,  6  Cowen,  346. 

22  M70 


170     Of  Fraud  and  Deceit  in  the  Sale  of  Goods,  [Part  II. 

ground  that  a  gross  fraud  had  been  practised  on  them  by  the  defendant :  but  the 
learned  Judge  gave  leave  to  the  defendant  to  move  to  set  aside  the  verdict,  and 
enter  a  nonsuit.  A  motion  to  this  effect  was  accordingly  made  :  the  Court, 
however,  refused  the  rule,  and  were  clearly  of  opinion  that  the  verdict  was 
right.  And  Dallas  Ch.  J.  said,  "  I  think  that  this  rule  ought  to  be  discharged  ; 
and  upon  this  plain  ground,  that  the  jury  have  found  a  fraud  in  the  defendant, 
committed  by  him  through  the  medium  of  Phillips.  Nor  can  I  distinguish  be- 
tween Phillips  and  the  defendant  in  the  prosecution  of  this  fraudulent  transac- 
tion, for  Phillips  stands  in  the  light  of  agent  to  the  defendant  throughout  the 
whole  contrivance.  But  it  is  not  necessary  to  go  that  length  ;  nor  do  I  wish  to 
come  to  any  decision  uncalled  for  by  the  case  before  the  Court.  I  confine  my- 
self strictly  to  this.  Here  was  a  sale  of  wines,  the  property  of  the  plaintiffs, 
brought  about  by  fraud  and  collusion,  in  which  the% defendant,  who  was  to  reap 
the  benefit  of  such  sale,  was  prime  mover.  Now  it  is  admitted,  that  a  sale  ef- 
fected by  fraud  works  no  change  of  property  ;  the  property  then  in  this  case 
remained  in  the  original  owner,  and  therefore  I  hold  the  profits  of  the  sale  in 
the  hands  of  the  defendant,  to  be  so  much  money  had  and  received  by  him,  to 
the  use  of  the  plaintiffs,  who  were  the  original  proprietors.  On  this  ground  I 
am  of  opinion,  that  this  application  must  be  dismissed." 

*So  in  the  case  of  Jackson  v.  Duchaire,(e)  where  an  agreement  was  made 
between  the  plaintiff  and  defendant  to  take  certain  goods  at  a  valuation ;  but  the 
defendant  not  being  able  to  raise  the  money,  she  got  a  friend  of  the  name  of 
Welch  to  purchase  them  for  her,  and  Welch  agreed  with  the  plaintiff  for  the 
same  at  the  price  of  701.  It  appeared,  however,  in  evidence  at  the  trial,  that 
there  was  a  private  agreement  between  the  plaintiff  and  defendant  unknown  to 
Welch,  that  the  defendant  should  pay  the  further  sum  of  30Z.,  over  and  above 
the  70/.  to  be  paid  by  Welch ;  and  had  in  pursuance  thereof  given  to  the  plain- 
tiff two  promissory  notes  of  15/.  each  ;  and  on  one  of  which  this  action  was 
brought ;  and  the  plaintiff  called  witnesses  to  prove  that  the  goods  were  worth 
more  than  70/.,  independently  of  the  convenience  to  the  defendant  of  purchas- 
ing them  on  the  spot.  But  Lord  Kenyon  Ch.  J.,  before  whom  the  action  was 
tried,  was  clearly  of  opinion  that  the  plaintiff  was  not  entitled  to  recover,  upon 
the  ground  that  the  private  agreement  between  these  parties  was  a  fraud  upon 
Welch,  who  had  paid  this  money  in  advancement  of  the  defendant  in  confidence 
that  the  sum  paid  by  him  was  the  whole  consideration.  The  jury,  however, 
found  a  verdict  for  the  plaintiff.  But  a  rule  for  setting  aside  the  verdict  having 
been  obtained,  the  Court  determined,  that  the  verdict  was  wrong,  and  that  no 
sction  would  lie. 

So,  where  a  buyer  of  goods  fraudulently  gives  a  bill  of  exchange  in  satis- 
faction and  by  way  of  barter  for  goods,  knowing  at  the  time  that  it  is  an  un- 
available security  and  worth  nothing,  he  is  answerable  for  damages  in  an  action 
of  trover  or  deceit ;  but  not  in  assumpsit  for  goods  sold  and  delivered.     Thus, 


(e)  3  Term  Rep.  551. 

171 


Chap.  1.]  And  of  a  Delivery  obtained  by  false  Pretences.  171 

in  the  case  of  Read  v.  Hutchinson(f),  which  was  an  action  of  assumpsit  for 
goods  sold  and  delivered  upon  the  following  sale-note,  viz.  "  Sold  for  account 
of  Mr.  James  Read — To  John  Hutchinson,  Seven  pipes  Guernsey  red-wine» 
Ex  Prince  Regent,  at  47/.  per  pipe,  as  they  lie  in  the  London  Dock,  to  be  paid 
for  by  Mr.  Edward's  bill  on  Mr.  P.  Young  of  328/.  12s.  due  in  December  next, 
without  recourse  on  the  buyer  in  case  of  its  not  being  paid."  The  wines  were 
immediately  transferred  in  the  London  Docks  to  the  defendant,  and  he  gave  the 
bill  upon  Young  in  payment.  The  plaintiff's  case  was,  that  this  bill  was  dis- 
honored when  due,  and  that  the  defendant  at  the  time  of  the  sale  perfectly  well 
knew  it  was  worth  nothing,  and  had  deceitfully  represented  it  as  an  availabls 
security  ;  and  it  was  contended  that  the  defendant  was  still  liable  to  pay  for  the 
goods.  But  Lord  Ellenborough  Ch.  J.  said,  "  I  am  of  opinion  this  action  can- 
not be  maintained.  If  there  be  any  contract  between  these  parties,  it  is  that 
evidenced  by  the  broker's  note  ;  and  according  to  that,  the  wines  were  not  to 
be  paid  in  money,  but  were  to  be  bartered  against  a  bill  of  exchange,  and  it 
was  *expressly  stipulated  that  the  buyer  was  not  to  be  liable  in  case  the  bill 
should  be  dishonoured  ;  therefore  he  never  was  indebted  to  the  plaintiff  for  the 
price  of  the  wines,  and  the  law  cannot  imply  a  promise  on  his  part  to  pay  for 
them.  If  the  contract  is  altogether  rescinded,  there  is  no  sale.  The  defendant 
is  not  a  purchaser  of  the  goods,  but  a  person  who  has  tortiously  got  possession 
of  them.  If  he  knew,  at  the  time,  that  the  bill  was  worth  nothing,  I  think  he 
is  answerable  to  the  plaintiff  to  the  amount  of  the  value  of  the  goods  ;  but  this 
is  not  the  proper  remedy.  The  plaintiff  should  have  brought  trover,  or  an  ac- 
tion of  deceit." 

'  So,  where  goods  are  obtained  from  a  trader  by  fraud,  and  under  a  color  pre- 
tence of  making  a  purchase,  and  the  trader  is  thereby  induced  to  make  an  actu- 
al delivery  of  goods  to  him  ;  such  delivery  does  not  pass  the  property,  but  the 
trader  may  legally  follow  the  goods  and  seize  them  :(102)  but  in  doing  so,  great 

(/)  3  Campb.  352. 

(102)  Palmer  v.  Hand,  13  J.  R.  434.  If,  during  the  delivery  of  goods  sold,  and  before  it 
is  completed,  the  vendee  sell  or  pledge  them  to  a  third  person,  for  a  valuable  consideration, 
without  the  knowledge  of  the  original  vendor,  the  lien  of  the  latter  will  not  be  affected  ;  and 
he  may  recover  them  from  the  subsequent  purchaser.  Id.  And  so,  where  goods  were  sold 
and  delivered  by  means  of  fraudulent  representations  of  the  vendee,  the  vendor  cannot  re- 
scind the  contract,  and  claim  the  goods  against  an  attaching  creditor  of  the  fraudulent  ven- 
dee, whose  debt  accrued  subsequent  to  the  sale  ;  but  if  such  creditor  attach  for  a  subsequent, 
and  also  for  a  prior  debt,  joined  in  the  same  writ,  his  lien  on  the  goods,  as  against  the  party 
defrauded,  extends  to  so  much  of  the  goods  only,  as  will  satisfy  the  subsequent  debt,  and 
costs.  Gilbert  v.  Hudson,  4  Greenl.  "345.  See  Flussey  v.  Thornton,  4  Mass.  Rep.  405. 
Moxorey  v.  Walsh,  8  Cowen,  23S.  So,  if  a  sale  of  goods  be  effected  by  fraud  on  the  part  of 
the  vendee,  the  contract  as  between  the  original  parties,  is  void  ;  but  if  the  vendee  sell  and 
deliver  the  goods  to  a  bona  fide  purchaser,  the  property  will  vest  in  the  latter  ;  and  yet  the 
goods  are  not  subject  to  be  seized  and  sold  in  execution  for  a  debt  of  the  fraudulent  vendee. 
Mowrey  v.  Walsh,  8  Cowen,  238.  See  Tamplin  v.  Mdy,  note  (a).  Id.  239.  In  order  to  enti- 
tle the  vendor  of  goods  to  vacate  the  sale,  and  reclaim  the  goods,  on  the  ground  of  fraud,  it 
is  not  necessary  that  the  fraudulent  representations  should  have  been  made  at  the  time  of 
the  sale  ;  it  is  sufficient,  if  the  goods  were  obtained  by  the  influence  and  means  of  false  and 
fraudulent  communications  made  at  a  previous  time.  Seaver  v.  Dingley,  4  Greenl.  306.  See 
further  in  Leedum  v.  Phillips,  1  Yeates,  529. 

•172 


172     Of  Fraud  and  Deceit  in  the  Sale  of  Goods,  [Part  11. 

caution  should  be  taken  in  not  committing  personal  violence,  or  other  breai  h  of 
the  peace,  or  of  being  guilty  of  any  excess  of  trespass.     Thus,  in  the  case  of 
Noble  v.  Adams, (g)  which   was  an  action  of  trover  for  a  quantity  of  Madras 
handkerchiefs.     The   plaintiff  contended  that  he  had    purchased   them    from 
Cross  and  Co.    The  defendant  was  a  wharfinger  in  London,  into  whose  hands 
the  goods  had  come,  by  the  plaintiff's  order,  upon  their  arrival  in  London  from 
Glasgow  ;  and  the  defendant  sought  to  retain  the  goods  for  the  benefit  of  Cross 
and  Co.,  by  whom  he  was  indemnified.     And  upon  the  trial,  the  defendant  sub- 
mitted two  grounds  of  defence,  first,  that  the  vendors  had  a  right  to  stop  the  goods 
in   transitu,  which  they  had  exercised  by  forbidding  the    defendant   to    deliver 
them  ;  and,  secondly,  that  the  property  in  the  goods  never  had   been  changed  ; 
the  goods  having  been  obtained  under  such  circumstances  of  fraud  as  vitiated 
the  sale.     It  appeared  in  evidence,  that  the  plaintiff,  a  trader  in  London,  being 
the  holder  of  a  bill  for  447/.  13.?.,  accepted  by  Outhwaite  and  Co.,  with  whom 
he  was  in  the  habit  of  exchanging  bills,  and  whom  he  knew  to  have  become  in- 
solvent ;  and  knowing  himself  also  to  be  in  embarrassed   circumstances,  wrote 
to  Malcolm,  a  creditor  in  Glasgow,   stating  that    Outhwaite  and   Co.   could   not 
pay  their  bills,  and  were  not  worth  a  farthing ;  and   that  it  was  necessary  for 
him  (the  plaintiff)  to  go  down  into  Scotland  and  purchase  goods,  by  which  means 
he  could  stand,  and  would  help  out  one  or  two  of  his  creditors  :  he  accordingly 
went  to  Glasgow,  and  there  purchased  the  goods  in  question  of  Cross  and  Co., 
for  which  he  paid  by  Outhwaite'' s  acceptance,  and  by  another  bill  for  108Z.  13s. 
10rZ.,  which  Malcolm  was   prevailed  on  to   draw  on  the  plaintiff,  in  favour  of 
Cross  and  Co.,  payable  at  PrescotCs  and  Co.  in  London.     He  did  not,  howev- 
er, assist  either  of  his  creditors  ;  and  it  did  not  appear  in  evidence  who  was  the 
person  that  delivered  the  goods  at  the  wharf  at  Leith  ;  but  it  clearly  *appeared 
that    they   were  shipped  for  London  by  the   plaintiff  himself,  to   whom  the  de- 
fendant's employers,  the   Edinburgh  and  Leith  shipping  company,  gave  an  ac- 
knowledgment, dated  21st  April  1815,  that  they  had  received   the  goods   from 
the  plaintiff,  to  be  shipped  at   Leith   in  the  Hope,   deliverable   at  the  Glasgow 
wharf,  London.     Upon  this  evidence  Gibbs  C.  J.  was  of  opinion,  upon  the  first 
ground  of  defence,  that  as  there  had  been  an  absolute  delivery  of  the  goods  to 
the  plaintiff,  the  right  of  stoppage  in  transitu  was  at  an  end.     But  upon  the  se- 
cond point,  he  thought  it  was  a  question   for  the  jury,   whether  Cross  and    Co. 
had  merely  made  an  improvident  sale,  or   whether  the  defendant  had  proved 
that  the   plaintiff  had  fraudulently   obtained   the   goods.      If  the  jury   thought 
that  the  plaintiff  went  down  to    Scotland,   having  formed   a  deliberate  plan  to 
put  off  bad  bills  for  valuable  merchandizes,  knowing  the  goods  would  never  be 
paid  for,  and  intending  then  to  abscond  with  the  goods,  or  to  throw  them   into 
an  immediate  bankruptcy,  or  to  pass  them  over  to  a  particularly  favoured  credi- 
tor, his  Lordship   was  of  opinion  that  the   plaintiff  had  been  guilty  of  a  fraud, 
and  that  the    sale  would  not  change  the    property  ;  but    if  the  plaintiff  only 


(r)  7  Taunt.    59. 
173 


Chap.  1.]  And  of  a  Delivery  obtained  by  false  Pretences,  173 

meant  to  give  these  bills,  and  himself,  by  these  bills,  more  credit  than  they  de- 
served ;  but  intended    to  continue  to  carry  on  his    business,    and  to  try  to    pay 
for  the  goods  at  some  time  or  other,  if  he  could,  that  was   not  such  a    fraud  as 
would  vitiate  the  sale.     The  jury  told  his  lordship  that  they  believed   that  this 
was  a  fraudulent  transaction,  undertaken  knowingly,  and  with  intent  to  defraud 
Cross  and  Co.  of  their  goods  ;  and  they   accordingly  found  a  verdict  for  the  de- 
fendant :   and  the  Court  of  Common  Pleas  afterwards  refused  a  rule  for  setting 
aside  the  verdict,   and  declared  their  opinion,  that  under  the   guards  which  the 
learned  Judge  had  stated  the  proposition  to  the  jury,  he  had  stated  it    correctly. 
So  in  the  case  of  the  Earl  of  Bristol  v.  Wilsmore,  (h)  which  was  an  action 
on  the  case  for  seizing  and  taking  part  of  a  flock  of  sheep  which  had  been  seiz- 
ed and  taken  in  execution.     At  the    trial  before  Abbott  Ch.  J.    it   was  proved, 
on  the  part  of  the  plaintiff,  who  was  the  chief  steward  of  the    liberty  of  Bury 
St.  Edmund's,  and  by  whose  bailiff  the    writ  had  been    executed,   that    in   the 
course  of   the   night  after  the  sheep  had  been  seized  in  execution,    and    whilst 
they  were  in  the  custody  of  the  officer,  in  a  field   belonging  to  Miller,  next    ad- 
joining to  a  meadow  belonging   to  the  defendant  Wilsmore,    Page  had    made  a 
passage  for  the  sheep  into  Wilsmore1 's  field  ;  and  that  the  latter  had  impounded 
them  ;   and   the  next  morning  delivered  them   to   Page,  upon    his    paying  the 
alleged  amount  of  the  damage  done.     This  appeared  to   have  been  a   contriv- 
ance between  Wilsmore  and  Page,  in  order  to  enable  the  latter  to    obtain  pos- 
session of  the  sheep.     On  the  part  of  the  defendant  it  was  proved,   that  Miller 
had  *obtained  the    sheep  from  Page  under  the    following  circumstances  :  they 
were  offered  to  him  for  sale  on  Wednesday  the  lGth  May  1S21,  by  Lemon,  the 
servant  of  Page ;  and  Miller   agreed   to   pay    78/.  in  ready  money    for    them. 
The  bargain    being  made,   the  sheep  were  driven    by  Lemon  to    the    house    of 
Miller  at  Nayland,  about  nine  miles  from   Colchester ;  upon  their  arrival  there, 
Miller  prevailed  upon  Lemon  to    accept  a    check  for    78/.  upon    Miles  &■  Co., 
bankers  at  Colchester,  by  assuring  him  that  it  was  as  good  as  money.     Miller's 
account  at  the  bankers  had  been  overdrawn  for  some  months  before  this  trans- 
action took  place.     Lemon  then  left  the  sheep  in  Miller's  possession  ;  Page,  after 
keeping  the  check  for  two   days,  presented  it  at   the  bankers,  and  payment  was 
refused.     On  the  very  day    the   sheep  were   obtained  from  Lemon,    Elizabeth 
Carver,  who  was  sister-in  law  to  Miller,  went  with  him  to  the  office  of  an  attor- 
ney at  Colchester,  who  was  an  entire  stranger  to  them,  and  gave  him  instruc- 
tions to  prepare  a   warrant  of  attorney,    which    was    done   accordingly ;  and 
upon  that,  judgment  was  entered  up,  and  execution  issued    against    Miller,  un- 
der which  the   sheep  in   question  were  taken.     Miller  absconded,  and  was   not 
afterwards    heard    of.     Upon  these  facts  it  was   contended,  on   the  part  of  the 
defendant,  that  no  property  in  the  sheep  was  vested  in  Miller    by    the  sale,  he 
having  obtained   possession  of  them  by  fraud.     On  the  part   of  the  plaintiff  it 
was  contended,  that  the  property  did  pass,  inasmuch  as  there  was  no  false  rep- 


[(h)   l,Baru.  &  Cres,  511. 

*174 


174      Of  Fraud  and  Deceit  hi  the  Sale  of  Goods.  [Part  II. 

resentation  made  to  induce  Page  to  part  with  the  possession  of  the  sheep  ; 
and  the  case  of  Rex  v.  Lara  was  cited,  (i)  The  Lord  Chief  Justice,  upon  the 
authority  of  that  case,  was  of  opinion  that  the  property  had  passed  to  Miller, 
and  without  submitting  the  fact  of  fraud  to  the  jury,  directed  them  to  find  a  ver- 
dict for  the  plaintiff,  which  they  accordingly  did  for  78Z.  But  a  rule  for  a  new 
trial  was  afterwards  obtained  ;  and  the  Court,  upon  argument,  determined  that 
the  question  of  fraud  should  have  been  submitted  to  the  jury ;  and  the  Chief 
Justice  then  said,  "  Upon  further  consideration  we  are  all  of  opinion  that  there 
ought  to  be  a  new  trial.  If  Miller  contracted  for  and  obtained  possession  of 
the  sheep  in  question  with  a  preconceived  design  of  not  paying  for  them,  that 
would  be  such  a  fraud  as  would  vitiate  the  sale  ;  and  according  to  the  cases 
which  have  been  cited,  would  prevent  the  property  from  passing  to  him. 
Whether  he  obtained  possession  of  the  goods  with  such  a  preconceived  design, 
is  a  question  of  fact  which  ought  to  be  left  to  the  jury  ;  and  for  that  purpose 
the  case  must  go  down  to  a  second  trial.  At  the  former  trial,  the  cases  of  No- 
ble v.  Adams, (k)  Rex  v.  Jackson,(l)  and  Read  v.  Hutchinson,(m)  were  not 
cited.  If  the  property  in  the  sheep  had  not  passed  to  Miller,  it  is  clear  that 
the  plaintiff  was  not  entitled  to  the  possession  of  them  against  the  defendants  ;  for 
the  plaintiff  had  a  right  to  seize  *under  the  fieri  facias  the  property  of  Miller 
only :  unless  the  sheep,  therefore,  had  become  the  property  of  Miller  the 
plaintiff  had  no  right  to  take  them,  and  still  less  to  retain  possession  of  them 
as  against  the  rightful  owner." 

15.  OF  THE  SALE  OF  SMUGGLED  GOODS  ;  OR  OF  LIBELLOUS  PRINTS,  &c. 

In  a  former  part  of  this  work,  we  have  seen  that  contraband  or  smuggled 
goods  are  such  as  are  prohibited  by  act  of  parliament,  or  the  King's  procla- 
mation, either  to  be  imported  into,  or  exported  out  of  this  country  :  and  that  if 
any  contract  for  the  sale  of  goods  of  this  description  be  made  in  this  country  it 
is  void,  and  no  action  will  lie  thereon. (n)  But  where  the  contract  and  delivery 
of  goods  are  complete  abroad,  and  the  seller  does  no  act  to  assist  the  smug- 
gling them  into  this  country,  such  a  contract  is  valid,  and  may  be  recovered 
upon  here.  Thus,  in  the  case  of  Holman  and  others  v.  Joh?ison,(o)  which 
was  an  action  of  assumpsit  for  goods  sold  and  delivered  ;  at  the  trial,  a  verdict 
was  found  for  the  plaintiff.  But  upon  a  rule  to  show  cause  why  a  new  trial 
should  not  be  granted,  Lord  Mansfield  reported  the  case,  which  was  shortly 
this:  "  The  plaintiff,  who  was  resident  at,  and  an  inhabitant  of  Dunkirk,  to- 
gether with  his  partner,  a  native  of  that  place,  sold  and  delivered  a  quantity  of 
tea,  for  the  price  of  which  the  action  was  brought,  to  the  order  of  the  defen- 
dant, knowing  it  was  intended  to  be  smuggled  by  him  into  England:  they  had, 
however,  no  concern  in  the  smuggling  scheme  itself,  but  merely  sold  his  tea 


(>)  6'  Term  Rep.  565.  (n)  Ante,  64.  and  the  several  cases  there 

(it)   Ante,    172.  cited. 

(I)  3  Campb.  370.  (o)  Cowp.  341.  et.  vid.  Hodgson  v.  Temple, 

(m)  Ante,  171.  5  Taunt.  181. 


» 


175 


Chap.  1.]  Of  Smuggled  Goods,  or  Libellous  Prints,  &c-  175 

as  they  would  have  done  to  any  other  person  in  the  common  and  ordinary 
course  of  their  trade."  In  support  of  the  rule  it  was  insisted,  that  the  contract 
for  the  sale  of  this  tea  being  founded  upon  an  intention  to  make  an  illicit  use  of 
it,  which  intention  and  purpose  was  with  the  privity  and  knowledge  of  the 
plaintiff,  he  was  not  entitled  to  the  assistance  of  the  laws  of  this  country  to 
recover  the  value  of  it.  He  cited  Huberus,  2  vol.  538,  9.  and  Robinson  v. 
Bland,  to  show  that  the  contract  must  be  judged  of  by  the  laws  of  this  country, 
and  consequently  that  an  action  for  the  price  of  the  tea  could  not  be  supported 
here.  But  the  Court  determined,  that  as  the  sale  and  delivery  was  complete  at 
Dunkirk,  and  there  was  no  evidence  to  show  that  the  plaintiff  had  any  concern 
in  running  the  tea  into  England,  he  was  entitled  to  recover. 

Lord  Mansfield  Ch.  J.  said  :  "  There  can  be  no  doubt  but  that  every  action 
tried  here  must  be  tried  by  the  law  of  Englan d ;  but  the  law  of  England  says, 
that  in  a  variety  of  instances,  with  regard  to  contracts  legally  made  abroad,  the 
laws  of  the  country  where  the  cause  of  action  *arose  shall  govern.  There  are 
a  great  many  cases  which  every  country  says  shall  be  determined  by  the  laws  of 
foreign  countries  where  they  arise.  But  I  do  not  know  how  the  principles  on 
which  that  doctrine  obtains,  are  applicable  to  the  present  case.  For  no  country 
ever  takes  notice  of  the  revenue  laws  of  another.  The  objection  that  a  contract 
is  immoral  or  illegal,  as  between  plaintiff  or  defendant,  sounds,  at  all  times,  very 
ill  in  the  mouth  of  the  defendant.  It  is  not  for  his  sake,  however,  that  the  ob- 
jection is  ever  allowed  ;  but  it  is  founded  in  general  principles  of  policy,  which 
the  defendant  has  the  advantage  of,  contrary  to  the  real  justice,  as  between  him 
and  the  plaintiff,  by  accident,  if  I  may  so  say.  The  principle  of  public  policy 
is  this  :  ex  dolo  malo  non  oritur  actio.  No  court  will  lend  its  aid  to  a  man 
who  founds  his  cause  of  action  upon  an  immoral  or  illegal  act.  If,  from  the 
plaintiff's  own  stating  or  otherwise,  the  cause  of  action  appears  to  arise  ex  turpi 
causa,  or  the  transgression  of  a  positive  law  of  this  country,  there  the  Court 
says,  he  has  no  right  to  be  assisted.  It  is  upon  that  ground  the  Court  goes  ; 
not  for  the  sake  of  the  defendant,  but  because  they  will  not  lend  their  aid  to 
such  a  plaintiff.  So,  if  the  plaintiff  and  defendant  were  to  change  sides,  and  the 
defendant  was  to  bring  his  action  against  the  plaintiff,  the  latter  would  then 
have  the  advantage  of  it ;  for  where  both  are  equally  in  fault,  potior  est  conditio 
defendentis.  The  question  therefore  is,  whether,  in  this  case,  the  plaintiff's 
demand  is  founded  upon  the  ground  of  any  immoral  act  or  contract,  or  upon 
the  ground  of  his  being  guilty  of  any  thing  which  is  prohibited  by  a  positive  law 
of  this  country.  An  immoral  contract  it  certainly  is  not;  for  the  revenue  laws 
themselves,  as  well  as  the  offences  against  them,  are  all  positivi  juris.  What 
then  is  the  contract  of  the  plaintiff?  It  is  this  ;  being  a  resident  and  inhabitant 
of  Dunkirk,  together  with  his  partner,  who  was  born  there,  he  sells  a  quantity 
of  tea  to  the  defendant,  and  delivers  it  at  Dunkirk,  to  the  defendant's  order,  to 
be  paid  for  in  ready  money  there,  or  by  bill  drawn  personally  upon  him  in 
England.  This  is  an  action  brought  merely  for  goods  sold  and  delivered  at 
Dunkirk.     Where  then,  or  in  what  respect,  is  the  plaintiff  guilty  of  any  crime  ? 

*176 


17G  Of  Smuggled  Goods,  or  Libellous  Prints,  $-c.    [Part  If. 

Is  there  any  law  of  England  transgressed  by  a  person  making  a  complete   sale 
of  a  parcel  of  goods  at  Dunkirk,    and    giving    credit  for  them  1  The  contract 
is  complete,  and  nothing   is  left  to  be  done.     The  seller,   indeed,  knows  what 
the  buyer  is  going  to  do  with  the  goods,  but  has  no  concern  in  the  transaction 
itself.     It  is  not  a  bargain  to  be    paid  in  case   the  vendee  should   succeed  in 
landing  the  goods  ;  but  the  interest  of  the   vendor  is  totally  at  an  end,  and  his 
contract  complete  by  the  delivery  of  the   goods   at  Dunkirk.     To  what  a  dan- 
gerous extent  would   this  go  if  it  was  to  be  held  a  crime.     If  contraband  cloths 
are   bought    in   France,  and  brought  home  hither?  or  if  glass  bought  abroad, 
which  ought  to  pay  a  great  duty,  is  run  into  England;  shall  the  French  taylor, 
or  the  glass  manufacturer  *stand  to  the  risk  or  loss  attending  their  being  run 
into  England?  Clearly  not.       Debt  follows  the  person,  and  may  be  recovered 
in  England,  let  the  contract  of  debt  be  made  where  it  will  ;  and  the  law  allows 
a  fiction  for  the  sake   of  expediting  the   remedy.     Therefore  I  am   clearly  of 
opinion,  that  the  vendors  of  these  goods  are  not  guilty  of  any  offence,  nor  have 
they  transgressed  against  the  provisions  of  any  act  of  parliament.     The  gist  of 
the  whole  turns  upon  this,  that  the  conclusive  delivery  was  at  Dunkirk.     If  the 
defendant  had  bespoke   the  tea   at  Dunkirk  to  be  sent  to  England  at  a  certain 
price  ;  and  the  plaintiff  had   undertaken  to  send  it  into   England,  or  had  had 
any  concern  in  the  running  it  into  England,  he  would  have   been   an   offender 
against  the  laws  of  this  country.     But  upon  the  facts  of  the  case,  from  the  first 
to  the  last,  he  clearly  has  offended  against  no  law  of  England.'1'' 

But,  if  a  vendor  of  goods  abroad  knows,  at  the  time  of  the  sale  and  delivery, 
that  the  goods  are  to  be  smuggled  into  this  country,  and  gives  his  assistance  to 
the  vendee,  by  packing  them  in  a  particular  manner  for  smuggling,  with  intent 
to  aid  that  purpose,  he  cannot  recover  the  value  of  the  goods  sold,  even  though 
he  be  a  foreigner  resident  abroad.  Thus,  in  the  case  of  Waymell  v.  Reed  and 
another,(/>)  which  was  an  action  of  assumpsit  for  goods  sold  and  delivered,  and 
the  defence  was,  that  the  contract  was  a  smuggling  transaction.  And  it  ap- 
peared in  evidence,  that  the  defendants  had  applied  to  the  plaintiff,  who  was  a 
foreigner  living  at  Lisle,  for  a  quantity  of  lace,  which  he  knew  was  intended  to 
be  smuggled  into  England ;  for  that  purpose  it  was  packed  by  the  plaintiff  in  a 
peculiar  manner,  by  the  direction  of  the  defendants,  for  the  more  easy  convey- 
ance of  it  without  a  discovery.  The  Court  determined,  that  the  plaintiff  could 
not,  under  the  circumstances,  recover  for  the  goods  sold.  And  Lord  Kenyon 
Ch.  J.  said,  "  It  is  not  necessary  to  inquire  now  whether  or  not  it  be  immoral 
for  the  native  of  one  country  to  enter  into  a  contract  with  the  subject  of  ano- 
ther, to  assist  the  latter  in  defrauding  the  revenue  laws  of  his  country.  It  is 
sufficient,  in  order  to  dispose  of  this  case,  to  advert  to  the  distinction  laid  down 
by  Lord  Mansfield  in  Holman  v.  Johnson,  to  which  I  entirely  subscribe  ;  that 
where  the  contract  and  delivery  of  goods  are  complete  abroad,  and  the  seller 
does  no  act  to  assist  the   smuggling  them  into  this  country,  such  a  contract  is 


(p)  5  Term  Rep.  599.     See  also  Clugasv.  Penabuna,  4  Term  Rep.  466.  S.  P. 
*177 


Chap.  I.]     Of  the  Sale  of  Libellous  Prints,  fyc.  Ill 

valid,  and  may  be  recovered  upon  here.  But  here  the  plaintiff  was  concerned 
in  giving  assistance  to  the  defendants  to  smuggle  the  goods,  by  packing  them 
in  the  manner  most  suitable  for,  and  with  intent  to  aid  that  purpose.  He  can- 
not therefore  resort  to  the  laws  of  this  country  to  assist  him  in  carrying  his  con- 
tract into  execution." 

So,  in  the  case  of  Biggs  and  others  v.  Lawrence,{q)  it  was  determined,  that 
an  action  cannot  be  maintained  by  several  partners  for  goods  sold  *by  one  of 
them  living  at  Guernsey,  and  packed  by  him  in  a  particular  manner  for  the 
purpose  of  smuggling,  though  the  other  partners,  who  resided  in  England, 
knew  nothing  of  the  sale  ;  for  it  is  a  contract  by  subjects  of  this  coun- 
try made  in  contravention  of  the  laws  :  and  this  case  must  be  considered  in  the 
same  light  as  if  all  the  partners  lived  in  England. 

But,  though  it  is  required  by  the  stat.  29  Geo.  3.  c.  68.  s.  30.,  that  every  per- 
son who  shall  deal  in  tobacco  shall  first  take  out  a  licence  under  a  penalty  ; 
yet  the  Court  of  King's  Bench  held,  that  a  factor  selling  a  parcel  of  prize  man- 
ufactured tobacco,  consigned  to  him  from  his  correspondent  at  Guernsey,  of 
which  a  regular  entry  was  made  on  importation,  but  without  having  entered 
himself  with  the  Excise  Office  as  a  dealer  in  tobacco,  or  having  any  licence  as 
such,  may  nevertheless  maintain  an  action  against  the  vendee  for  the  value  of 
the  goods  sold  and  delivered,  upon  the  ground  that  there  was  no  fraud  upon  the 
revenue,  nor  any  clause  making  the  contract  illegal ;  but  at  most  it  was  the 
breach  of  a  mere  revenue  regulation,  which  was  protected  by  a  specific  pen- 
alty, (r) 

Of  the  Sale  of  Obscene  or  Libellous  Prints.] — No   action   will  lie 
upon  a  contract  for  the  sale  of  prints  of  an  obscene,  immoral,  or  libellous  ten- 
dency.    Thus,   in  the  case  of  Fores  v.  Johnes,(s)  which  was   an   action  o£  as- 
sumpsit for  prints  sold  and  delivered.     The  plaintiff  was  a  printseller  in  Picca- 
dilly;  and  the  action  was  brought  to  recover  the  value  of  a  quantity  of  carrica- 
ture  prints  sold  by  him  to  the  defendant.     The  order,  as  proved   to  have  been 
given  by  the  defendant  to  the  plaintiff,   was,  "  For  all  the  carricature  prints 
that   had   ever   been   published."      Under  this    order,  the  prints  in  question, 
had  been  sent  to  the  defendant's  house  in    Wales.     The   defendant  refused  to 
receive  them,  on  the  ground,  that  the  collection   contained  several  prints  of  ob- 
scene and  immoral  subjects,  exclusive  of  several  being  duplicates.     The  plain- 
tiff's counsel  contended,  that  the  order  was  general   and   comprehensive,  with- 
out any  exception  as  to  the  subject ;  and   that  the   plaintiff,   therefore,  having 
sent  prints  of  every  description  was   entitled  to  be  paid   for  them.       Sed,  per 
Lawrence,  J.     "  For  prints,  whose  objects  are  general  satire  or  ridicule  of  pre- 
vailing fashions  or  manners,  I  think   the   plaintiff  may   recover;  but   I   cannot 
permit  him  to  do  so  for  such  whose   tendency   is   immoral  or  obscene  ;  nor  for 
such  as  are  libels  on  individuals,  and  for  which  the  plaintiff  might  have   been 
rendered  criminally  answerable  for  a  libel." 


((/)  3  Term  Rep.  454.  (s)  4  Esp.  Rep.  97. 

(r)  Johnson  v.  Hudson,  11   East  Rep.  180. 

23  «178 


179  Of  Credit  and  Payment  upon  the  Saleoj  Goods-  [Part  II. 

+16.  OF  CREDIT  UPON  SALES,  AND  THE  TIME  AND  MODE  OF  PAY- 
MENT ;  AND  IN  WHAT  CASES  PAYMENT  MAY  BE  RESISTED,  UP- 
ON THE  GROUND  OF  FRAUD  ;  AND  WHEN  THE  STIPULATED  PRICE 
MAY  BE  REDUCED  TO  A  QUANTUM   VALEBANT. 

1.  Of  Credit  given  upon  the  Sale  of  Goods.]  —  When  a  tradesman  gives 
credit  for  goods  at  the  time  of  the  sale,  he  cannot  bring  an  action  till  the  time 
of  credit  has  expired  ;  but  if  the  credit  is  given  or  extended  after  the  sale  ;  or 
if  the  buyer  has  acted  fraudulently  in  obtaining  the  credit,  as  well  as  the  goods, 
the  tradesman  need  not  wait  the  full  time,  but  he  may  sue  the  buyer  for  his  debt 
immediately.  Thus,  in  the  case  of  De  Symons  v.  Minchwick,(t)  which  was 
an  action  of  assumpsit  for  goods  sold  and  delivered  :  and  upon  the  trial,  the  de- 
fence was,  that  the  action  was  brought  before  the  time  of  credit  had  expired. 
In  the  course  of  the  evidence  it  appeared,  that  the  plaintiff  had  sold  jewels  to  the 
defendant  to  the  amount  of  500/.  for  ready  money,  as  the  plaintiff  asserted ; 
but  as  a  witness  for  the  defendant  proved,  on  information  from  the  plaintiff  him- 
self, to  bp  paid  for  on  the  1st  of  November,  subsequent  to  the  bill  of  parcels, 
before  which  time,  namely,  on  the  22d  of  October,  the  action  had  been  com- 
menced. To  rebut  this  defence,  the  plaintiff  proved,  that  almost  immediately 
after  the  sale,  the  defendant  had  pawned  the  jewels  with  different  pawnbrokers, 
and  that  suspecting  the  defendant  not  to  be  the  person  he  represented  himself  to 
be,  he  had  arrested  him  before  the  time  alluded  to.  Eyre  Ch.  J.  said,  "  If  the 
credit  given  was  voluntary,  subsequent  to,  and  not  making  any  part  of  the  orig- 
inal contract,  it  certainly  might  at  any  time  be  retracted  :  but  if  it  made  part  of 
the  contract,  it  is  so  material  a  part  of  it,  that  if  the  action  be  brought  within  the 
time  limited  for  credit,  it  cannot  legally  be  supported,  unless  it  was  not  a 
bona  fide  purchase  at  the  time  by  the  vendee  ;  for  if  he  meant  to  impose  on  or 
defraud  the  vendor  of  his  goods,  the  defence  will  not  avail.  But  those  are  cir- 
cumstances for  the  consideration  of  the  jury  only,  to  whom  he  left  it."  The  jury 
(which  was  a  special  one)  found  a  verdict  for  the  defendant. 

So,  when  goods  are  sold  upon  a  contract  that  the  vendee  shall  pay  for  them 
in  three  months,  by  a  bill  of  two  months,  it  is  a  credit  of  five  months  ;  and 
therefore  no  action  of  assumpsit  for  goods  sold  and  delivered  can  be  brought  at 
the  end  of  three  months,  upon  the  neglect  of  the  vendee  to  give  his  bill  at  two 
months  ;  the  remedy  being  by  a  special  action  on  the  case  for  damages,  for  the 
breach  of  contract  in  not  giving  such  bill.  Thus,  in  the  case  of  Mussen  v.  Price, 
and  another,  (u)  which  was  an  *action  of  assu?npsit  for  goods  sold  and  deliver- 
ed ;  and  the  only  question  was,  whether  the  action  was  commenced  before  the 
time  of  credit  on  which  the  goods  in  question  had  been  contracted  to  be  brought 
was  expired  ?     Payment  for  the  goods  was  to  be  made  by  the  defendants  in 


(t)  1  Esp.  Rep.  430.  et  vid.  2  Esp.    Rep.         (u)  4  East  Rep.   147.   See  also  Dutton  v. 
523.  4  East  Rep.  76.  S.  P.  Solomonson,  3  Bos.  &  Pul.    582.  Hickling  v. 

Hardey,  1  Mo.  61. 

*179  *180 


Chap.  l.]Of  Credit  and  Payment  upon  the  Sale  of  Goods.  180 

three  months  after  the  loth  of  September  1802,  (the  day  on  which  the  bargain 
was  concluded)  by  a  bill  at  two  months.     The  action  being  commenced  before 
the  expiration  of  five  months  from  the  15th  of  September  preceding,  the  defen- 
dant's counsel  objected  that  it  was  prematurely  brought,  and  therefore  that  the 
plaintiff  should  be  nonsuited  ;  but  the  learned  Judge  held,  that  unless  the  defen- 
dants could  show  (which  they  did  not  do)  that  they  had  given  or  tendered  such 
a  bill  at  the  end  of  the  three  months,  the  action  would  lie  for  goods   sold  and 
delivered.     Accordingly,  the  plaintiff  recovered  ;  but  the  point  was    saved  for 
the  consideration  of  the  Court  of  King's  Bench.     And  a  motion  was  made  for 
a  rule  to  set  aside  the  verdict,  and  for  leave  to  enter  a  nonsuit.     This  rule  was 
granted   principally  upon  the  authority  of  a   case,  Miller  v.   Shawe,  tried  at 
Lancaster  Lent  assizes,  1801,  Before   Mr.  Justice  Chambre,  which  was  stated 
to  be  as  follows  :(u)   "Action  for  goods    sold  and  delivered.     The  plaintiff's 
evidence  proved,  that  the  goods  were  sold  at  two  months,  and  two  months,  that  is, 
to  be  paid  for  at  two  months  by  a  bill  at  two  months  ;  which  the  witness  considt. 
ered  as  cash  at  four  months.     The  action  was  brought  before  the  expiration  of 
the  four  months,  and  the  declaration  was   in   the   usual  form,   containing  the 
usual  counts   of  indebitatus  assumpsit,   and  quantum  valebant  for  the  amount. 
Topping    for   the   defendant,    contended,   that   no    debt   existed    at  the    com- 
mencement of  the  action,  nor  till  the  four  months  were  expired ;  but  that  the 
plaintiff  might  have  brought  his  action  after  the  expiration  of  the  two  months, 
and  before  the   end  of  the  four  months,  upon  a  breach  of  his  contract  for  the 
non-delivery  to  him  of  a  bill ;  but  that  no  action  of  indebitatus  assumpsit  would 
lie  till  the  end  of  the   four  months.      Cockell,  serjeant,   and  Yates  contended, 
that    as  the   defendant   had   not    given    the    bill    at    the   end   of  the    two 
months,  they  might  abandon  the  contract,  and  recover  the  price  of  the  goods 
for  want  of  the  bill,  which,  if  given,  the  plaintiff  was  to  accept  in  lieu  of  the 
money.     And  Chambre  J.  at  first  seemed  to  be  of  that  opinion,  but  on  hearing 
Topping,  for  the  defendant,  as  above,  he  thought  that  after  the  four  months  the 
plaintiff  need  not  have  declared  on  the  contract,   but  the  money  being  tben 
due  and  unpaid,  he  might  declare  in  the   usual  way,  and  recover  the   price   as 
a  debt  on  an  indebitatus    assmnpsit.     Before  that   time,  however,  he    thought 
the  plaintiff's  only  remedy  was  for  damages  for  a  breach  of  die  promise  in  not 
delivering  the  bill  at  two  months  :   and  the  plaintiff  was  nonsuited.     And  in  the 
principal  case,  *after  argument,  the  Court  of  King's  Bench  determined,  that  the 
action  for  goods  sold  and  delivered,  could  not  be  sustained  till   the  end  of  five 
months  ;  and  accordingly   made  the  rule  absolute  for  setting  aside  the    verdict, 
and  entering  a  nonsuit.     And  Le  Blanc  Just,   said,  "  I  think    this    action  was 
brought  before   the  time  of  credit  had    expired.     Here  is    an  express  promise 
proved  between  the  parties,  the  seller  was  to  stand  upon  the  credit  of  the  defen- 
dant alone  for  three   months,  and  then  he  was  to  have  in   addition  a  third   per- 
son's credit  for   two  months  longer  ;  so  that   altogether  the  defendant    was    to 


(v)  Vide  4  East  Rep.  149. 

*181 


181  Of  Credit  and  Payment  upon  the  Sale  of  Goods.[Vart  II. 

have  credit  for  five  months  before  he  was  called  upon  to  pay,  but  he  will  not 
have  the  benefit  of  his  contract,  if  he  be  called  upon  for  the  full  sum,  before  the 
expiration  of  the  five  months'  credit." 

If,  however,  the  goods  are  not  paid  for  at  the  end  of  the  five  months,  the  ven- 
dor may  recover  the  price  of  them  in  an  action  of  indebitatus  assumpsit  for 
goods  sold  and  delivered. (h)  And  when  goods  are  sold  without  any  agree- 
ment as  to  the  time  or  mode  of  payment,  and  there  is  no  custom  to  regulate 
the  time  of  payment ;  if  the  vendee  give  a  bill,  drawn  on  a  third  person,  pay- 
able at  a  future  day,  for  the  amount  of  the  goods ;  but  upon  presentment  of  the 
bill  for  acceptance  it  is  dishonoured,  the  vendor  may  immediately  sue  the  ven- 
dee for  the  price  of  the  goods,  and  consider  the  bill  as  a  nullity.(^)  But  if 
there  be  an  express  contract  to  give  credit  for  a  certain  time,  and  a  bill  is  given 
as  a  security,  the  vendor  must  wait  the  full  time  of  credit,  though  the  bill 
should  be  previously  dishonoured,  or  the  vendee  become  insolvent,  (y) 

So,  if  goods  are  sold  upon  a  contract  that  they  shall  be  paid  for  by  a  bill  to 
be  drawn  at  a  future  day,  payable  at  so  many  months'  date,  the  vendor  must 
draw  the  bill,  and  tender  it  to  the  vendee  for  acceptance,  though  the  latter  may 
have  dishonoured  several  of  his  acceptances  between  the  time  of  the  sale,  and 
the  period  at  which  the  bill  is  to  be  drawn.  Thus,  in  the  case  of  Reed  v. 
Mestaer(z),  which  was  an  action  of  assumpsit  for  breach  of  promise  in  not 
giving  a  bill  under  the  following  written  agreement:  "Agreed  on  the  15th 
October,  1802,  with  Peter  Everitt  Mestaer,  Esq.,  for  one  hundred  tons  of  cor- 
dage at  56/.  per  ton,  the  date  to  commence  from  that  day,  and  to  be  paid  by 
bill  at  twelve  months  from  the  15th  October,  1803,  with  interest  added.  (Sign- 
ed) S.  Reed." — At  the  trial,  the  plaintiff  merely  proved,  the  delivery  of  the 
cordage,  the  bill  of  parcels,  and  the  value.  But  the  counsel  for  the  defendant 
called  a  witness,  who  proved  the  above  agreement,  and  that  the  defendant  Avas 
ready,  and  had  offered  to  accept  a  bill  on  the  15th  of  October,  1803,  to  be 
drawn  by  the  plaintiff  upon  the  defendant  for  the  *one  hundred  tons  of  cordage  ; 
that  the  plaintiff  refused  to  take  the  defendant's  acceptance,  because  he  had  pre- 
viously dishonoured  several  of  his  bills  ;  but  was  ready  to  take  the  acceptance 
of  some  other  person  to  the  plaintiff 's  satisfaction.  The  cause  was  tried  be- 
fore a  special  jury  of  merchants  ;  and,  as  soon  as  the  agreement  was  read,  the 
jury  declared,  that  they  were  all  of  opinion,  that  by  the  course  of  dealing 
among  merchants,  upon  such  an  agreement,  the  bill  ought  to  have  been  drawn 
by  the  seller  upon  the  buyer,  and  by  him  accepted  ;  and  not  that  the  defendant 
should  tender  a  bill  accepted  by  another  person  to  the  plaintiff's  satisfaction,  as 
contended  for  by  the  counsel  for  the  plaintiff.  And  Lord  Ellenborough  Ch.  J. 
said,  "  that  under  this  agreement  it  was  certainly  a  question  for  the  jury  to  say 


(w)  Brook  v.   While,  1  New  Rep.  330.  East  Rep.   13.     7  Term  Rep.  6G. ;  and  see 

(x)   Vide   Owenson  v.  Morse,  7  Term  Rep.  4  East  Rep.  75. 

64.     Puckford  v.  Maxwell,  6  Term  Rep.  52.  (2)    At   Guildhall   Sitt.    aft.  Hil.    Term, 

4  East  Rep.  153.  1804,  coram  Lord  Ellenborough  Ch.  J.  MSS 

(y)   Stedman  v.  Gooch,  1  Esp.  Rep.  5.     15 

*182 


Chap.  ].]#/  Credit  and  Payment  upon  the  Sale  of  Goods.  182 

■what  sort  of  bill  was  understood  between  the   parties."     The  plaintiff  was 
therefore  nonsuited. 

So,  where  goods  are  sold  upon  a  credit  for  six  or  nine  months,  the  buyer 
may  elect  which  period  he  will  take  ;  and  if  payment  is  not  made  at  the  end  of 
six  months,  it  will  be  presumed  that  he  has  elected  the  longer  period,  (a)  But 
where,  upon  a  contract  for  the  sale  of  goods,  it  was  agreed  to  give  three 
months'  credit,  and  that  if  the  buyer,  at  the  end  of  that  period,  wished  for 
further  time,  the  vendor  would  take  his  bill  of  exchange  for  the  amount,  paya- 
ble in  three  months  more.  It  was  contended  that  this,  in  fact,  constituted  a 
credit  for  six  months  ;  and  that  the  plaintiff  (the  vendor)  having  brought  his 
action  before  the  expiration  of  that  time,  must  be  nonsuited  ;  and  the  case  of 
Musscn  v.  Price  was  cited.  But  Lord  EUenborough  held,  that  the  action  was 
not  premature  ;  the  plaintiff  had  agreed,  if  the  defendant  wished  it,  to  give 
further  time  ;  but  the  defendant  was  to  give  to  the  plaintiff  his  bill  at  three 
months,  as  the  price  of  that  indulgence.  It  was  therefore  incumbent  upon 
him  to  give  such  a  bill,  if  he  wished  to  avail  himself  of  the  indulgence  offered 
to  him."  (*) 

2.  Of  Payment  for  Goods  sold.] — If  an  agreement  is  made  for  the  sale  of 
goods  at  a  particular  price,  without  either  payment  or  mention  of  payment,  the 
contract  shall  be  void  if  the  vendee  do  not  pay,  or  offer  to  pay  for  them  upon 
delivery  ;  because  in  every  bargain,  payment  ought  to  be  made  on  the  delivery 
of  the  goods,  except  where  a  future  day  is  agreed  upon  between  the  buyer 
and  seller  :  and  this  is  to  be  done  notwithstanding  earnest  be  given  upon  the 
bargain  ;  for  that  only  makes  the  contract  complete,  (c)  But  though  where 
goods  are  sold  upon  an  agreement  to  pay  for  them  in  ready  money,  yet  if  the 
goods  happen  to  be  delivered  to  the  vendee  without  payment,  and  an  action 
is  afterwards  brought  for  the  price ;  and  it  happens  that  the  vendor,  at  the 
time  of  delivery  was  indebted  to  the  vendee  in  a  sum  of  money  equal  to  the 
*amount  of  the  goods  sold,  the  vendee  may  set  off  his  debt  against  the  amount 
of  the  goods,  notwithstanding  the  agreement  to  pay  ready  money.  Thus,  in 
the  case  of  Eland  v.  Karr(d),  which  was  an  action  of  indebitatus  assumpsit 
for  goods  sold  and  delivered,  the  defendants  pleaded  a  set-off  for  money  due 
upon  various  bills  of  exchange,  and  also  for  money  had  and  received  on  the 
14th  March  1800.  Replication  that  on  the  22d  March  1800,  it  was  agreed 
between  the  plaintiff  and  defendants  that  the  defendants  should  pay  to  the  plain- 
tiff for  the  goods  in  ready  money.  To  this  replication  there  was  a  general  de- 
murrer ;  and  in  support  of  which  it  was  contended,  that  an  agreement  to  pay 
for  goods  in  ready  money  admits  of  a  set-off  in  the  same  manner  as  any  other 
debt ;  and  that  the  agreement  to  pay  for  the  goods  on  delivery  is  merely  to 
ascertain  the  time  of  payment.     On  the  other  side  it  was  argued,  "  that  a  party 


~  (a)  Price,  v.  Nixon,  5  Taunt.  338.  ton  v.  Lamb,  7  Term  Rep.  125.     Ratcson  v. 

(6)  Nickson  v.  Jepson,  2  Stark.  227.  Johnson,  1  East  Rep.  203.  Bui.  N.  P.  50. 

(c)  Dy.  20.  a.    Hob.  41.   2.     Bro.  Con-         (d)   1  East  Rep.  375.     Comforth  v.  Rivett, 

tract,  25,  26.    Kit.  181.  b.    See  also  More-  2  Maule  &  Sel.  510.  S.  P. 

*183 


183  Of  Credit  and  Payment  upon  the  sale  of  Goods.  [Part  II. 

who  contracts  to  pay  for  goods  in  ready  money  could  not  substitute  any  other 
mode  of  payment ;  and  that  this  was  an  attempt  to  substitute  the  set-off  of  an- 
other debt  in  lieu  of  money  ;  and  that  too  in  a  case  where  the  damages  are  un- 
liquidated. But  the  Court  determined,  "  that  as  at  the  time  of  the  commence- 
ment of  the  plaintiff's  action,  which  was  the  time  to  be  regarded,  there  was  a 
debt  due  from  the  defendant  to  the  plaintiff,  the  latter  was  entitled  under  the 
statute  2  Geo.  2.  c.  2.  to  set  it  off;  that  no  objection  arose  from  the  damages 
being  unliquidated  ;  for  that  was  the  case  in  all  actions  of  assumpsit,  when 
damages  are  claimed  for  a  breach  of  contract  in  nonpayment  of  money." 
Where  A.  sold  goods  to  B.  for  which  the  latter  was  to  pay  in  three  months 
by  a  bill  at  three  months  ;  a  few  days  after  the  expiration  of  three  months  B. 
gave  to  A.  a  cheque  on  his  bankers  (who  were  also  the  bankers  of  A.)  re- 
quiring them  to  pay  A.  on  demand,  in  a  bill  at  70  days;  and  A.  paid-  the 
cheque  into  the  bankers'  hands,  and  took  no  bill  from  them,  but  the  amount  was 
transferred  in  the  bankers'  books  from  B.'s  account  to  A.'s,  with  the  knowl- 
edge of  both ;  the  bankers  having  failed  before  the  time  when  the  bill  which 
was  originally  intended  to  be  given  would  have  become  due,  a  question  arose 
whether  A.  could  recover  the  value  of  the  goods  against  B.,  and  the 
Court  of  Kings  Bench  held,  that  it  was  a  valid  payment,  and  that  A.  could  not 
recover,  (e) 

If  goods  are  to  be  paid  for  by  a  bill  upon  the  agent  of  the  buyer,  he  is  not 
discharged  by  the  seller's  taking  a  renewal  of  the  bill  from  the  agent,  without 
giving  the  purchaser  notice,  if  the  agent  had  no  funds  of  the  purchaser  in  hand, 
to  pay  the  bill  when  it  became  due.(/)  But  if  a  creditor  prefer  a  bill  of  ex- 
change, accepted  by  a  third  person,  to  ready  money,  from  his  debtor,  he  must 
abide  by  the  hazard  of  the  security.  But  if  an  agent  of  the  debtor  offer  the 
creditor  payment  in  cash,  or  by  *a  cheque  on  his  banker,  and  the  creditor  pre- 
fer the  cheque,  this  will  not  discharge  the  debtor,  if  the  cheque  be  dishonour- 
ed ;  although  the  agent  failed  with  a  balance  of  his  principal  in  his  hands  to  a 
large  amount,  (g) 

If  a  bill  of  exchange  or  banker's  cheque  is  given  in  payment  for  goods  sold, 
and  it  is  afterwards  lost  by  the  vendor,  he  cannot  recover  against  the  vendee 
upon  the  original  consideration  until  he  has  fully  indemnified  the  vendee  against 
the  bill  or  cheque.(/«)  And  it  was  held,  in  the  case  of  Pierson  v.  Hutchin- 
son,^) that  an  indorsee  of  a  lost  bill  of  exchange  could  not  maintain  an  action 
at  law  against  the  acceptor,  although  a  bond  of  indemnity  was  offered  ;  but  it 
would  be  otherwise,  if  it  could  be  proved  that  the  bill  had  been  destroyed.  So, 
where  goods  are  to  be  paid  for  by  a  bill  of  exchange,  and  the  vendor  directs  to 
the  vendee  a  bill  by  the  post,  and  the  bill  is  so  transmitted  by  the  vendee,  he 
will  he  discharged,  though  the  bill  should  happen  to   fall  into  bad  hands,  and 


(e)   Bolton  v.  Richard,  6  T.  R.  139.  Marsh  v.  Peddar,  4  Campb.  257. 
(/)   Clark  v.  Noel,  3  Campb.  411.  (h)  Bevan  v.  Hill,  2  Campb.  381. 

(g)  Everett  v.  Collins,  2  Campb.  515. ;  and         (t)  Ibid.  211. 
see  Tapleij  v.  Martin,  8  Term  Rep.    451.  ; 

*184 


Chap.l  ]  Of  Credit  and  Payment  upon  the  sale  of  Goods.  184 

the  amount  of  it  should  be  received  by  a  third  person  at  the  banker's  where  it 
was  to  be  paid ;  and  even  if  there  had  been  no  particular  direction  from  the 
vendor,  the  law  would  have  been  the  same,  this  being  the  usual  way  of  trans- 
acting such  business. (/f)  But  where  a  person  in  London  is  directed  to  remit 
money  bv  the  post,  he  ought  either  to  put  it  into  the  post-office  in  Lombard 
Street,  or  deliver  it  at  one  of  the  receiving-houses  appointed  by  the  post-office  ; 
and  if  he  give  it  to  a  bellman  in  the  street,  he  will  be  answerable  in  case  of 
its  miscarriage.  (/) 

If  one  entire  contract  is  made  for  the  delivery  and  payment  of  goods,  such 
contract  cannot  be  apportioned,  so  as  to  entitle  the  vendee  to  payment  of  the 
price  of  part  of  the  goods  delivered.  He  must  deliver  the  whole  before  the 
vendee  can  be  legally  called  upon  for  payment,  unless  he  refuse  to  accept  the 
residue.  Thus  in  the  case  of  Waddington,  v.  Oliver, (m)  which  was  an  action 
of  indebitatus  assumpsit  for  goods  sold  and  delivered  :  and  it  appeared,  that  on 
the  10th  of  September,  1804,  the  plaintiff  agreed  with  the  defendant  to  sell  him 
100  bags  of  Kent  hops,  merchantable,  of  the  growth  of  1804,  at  56s.  per  hun- 
dred weight,  to  be  delivered  on  or  before  the  1st  of  January  1805,  as  it  might 
be  agreeable  to  the  plaintiff;  that  on  the  12th  of  December,  12  bags  were  de- 
livered ;  and  on  the  same  day,  or  the  next,  payment  thereof  was  demanded, 
which  being  refused,  the  writ  was  sued  out  on  the  13th  of  December.  For  the 
plaintiff  it  was  urged,  that  as  no  time  was  stipulated  for  payment,  the  defendant 
was  bound  to  pay  for  them  as  they  were  delivered.  The  Court,  however,  were 
clearly  of  opinion  that  the  contract  was  entire,  and  could  not  be  split ;  and  that 
the  plaintiff  therefore  had  no  right  to  bring  an  action  until  the  whole  was  deliv- 
ered, or  until  the  time  for  delivering  the  whole  had  arrived.  But  where  A.  in 
consideration  *that  B.  had  bargained  and  sold  to  him  certain  tuns  of  strong 
beer,  promises  B.  to  pay  him  4Z.  for  every  tun  super  deliberationem  inde  of 
thirty  tuns  of  strong  beer  :  an  action  lies  upon  this  promise  for  so  many  tuns  as 
he  delivers,  before  the  delivery  of  all  the  thirty  tuns,  (n) 

Where  goods  are  delivered  upon  an  agreement  to  take  a  specific  parcel  of 
copper  money  in  payment ;  a  delivery  of  such  copper  is  a  good  bar  to  an  ac- 
tion for  the  value  of  the  goods,  though  in  fact  it  was  counterfeit  money,  but 
unknown  to  the  defendant,  (o)  But  where  A.  agrees  to  purchase  of  B.  a  gun 
for  the  sum  of  forty-five  guineas,  but  it  is  stipulated,  that  B.  shall  take  a  gun 
of  -A.'s,  valued  at  thirty  guiueas-in  part  payment,  A.  having  refused  to  deliver 
his  gun,  and  complete  the  contract,  B.  is  entitled  to  recover  the  sum  of  forty- 
five  guineas  as  the  stipulated  price,  (p)  So,  upon  an  agreement  between  two 
traders  to  supply  each  other  with  goods  for  goods,  after  a  balance  is  struck  be- 
tween them,  such  balance  is  to  be  paid  in  money,  (q) 


(k)   Warwicke  v.  Noakes,  Peake,  67.  a.  (o)   1  Term  Rep.  225. 

(/)  Haiokins  v.  Rutt,  Peake,  186.  (/))   Forsyth  v.  Jerri.?,  1  Stark.  437. 

(m)  2  New  Rep.  61.  (q)  Ante,  130.  Ingram  v.  Shirley,  1  Stark. 

(n)  Rol.  Abr.  29.  pl.2.  1  Dan.  Abr.   62.  185. 

pi.  2.  h 

*185 


185  Of  Credit  and  Payment  vpon  the  Sale  of  Goods.[Y?ttt  II. 

Where  a  quantity  of  iron  was  sold  and  delivered,  under  a  contract  that  cer- 
tain bills,  outstanding  against  the  plaintiffs,  should  be  taken  out  of  circulation. 
After  a  part  of  the  iron  had  been  delivered,  and  no  bills  had  been  taken  out 
of  circulation,  the  plaintiff  stopped  the  farther  delivery,  and  brought  trover 
for  what  had  been  delivered.  For  the  defendant  it  was  contended,  that  trover 
would  not  lie,  and  that  the  only  remedy  for  the  plaintiff  was,  to  bring  an 
action  for  the  breach  of  the  contract  by  the  defendant.  But  the  Court  held, 
that  this  was  only  conditional  delivery,  and  the  condition  being  broken,  the 
plaintiff  might  bring  trover.  And  Abbot  Ch.  J.  said,  "  He  had  left  it  to  the 
jury  to  say,  whether  the  delivery  of  the  iron  and  the  redelivery  of  the  bills,  were  to 
be  contemporary,  and  that  the  jury  found  that  fact  in  the  affirmative."  And 
Bayley  J.  added,  "  That  if  a  tradesman  sold  goods  to  be  paid  for  on  delive- 
ry, and  his  servant  by  mistake  delivers  them  without  receiving  the  money,  he 
may,  after  demand  and  refusal  to  deliver  or  pay,  bring  trover  for  his  goods 
against  the  purchaser."  (r) 

3.  In  what  cases  Payment  may  be  resisted  wholly,  upon  the 
Ground  of  Fraud.] —  It  is  a  maxim  of  the  common  law,  that  "fraud  viti- 
ates eve*y  thing  /"  consequently  every  contract  founded  in  fraud  is  void.  So  that 
the  vendor  of  goods  cannot  recover  the  value  of  any  article  which  he  has  sold 
to  another  under  any  practised  artifice  or  deceit ;  (103)  and  he  is  not  protected, 
as  we  have  before  seen,(s)  though  one  of  the  terms  of  the  contract  is,  that  the 
article  sold  shall  be  taken  "  with  all  faults,"  where  he  knows  of  any  secret 
defects,  and  uses  means  to  prevent  the  purchaser  *discovering  them,  or  makes  a 
false  representation  at  the  time  of  the  sale.  So,  where  the  agent  of  a  vendor 
of  a  picture,  knowing  that  the  vendee  erroneously  believed  it  to  be  the  prop- 
erty of  a  particular  individual,  for  whom  the  agent  was  at  that  time  employed 
in  selling  a  number  of  pictures,  which  belief  influenced  the  vendee's  judg- 
ment, permitted  him  to  make  the  purchase  without  removing  the  delusion, 
Lord  Ellenborough,  at  Nisi  Prius,  held   the  sale  fraudulent  and  void(*).     But 


(r)  Bishop  v.   Shillito,  2  Barn,   and  Aid.         (s)  Schneider  v.  Heath,  ante,  121. 
329,  n.  a.  (t)  Hill  v.  Gray,    1  Stark.  434.! 

(103)  The  law  is  now  well  settled,  that  in  an  action  for  the  price  of  goods  sold,  the  de- 
fendant may  prove  fraud  in  the  sale,  and  that  the  goods  were  of  no  value  ;  and  thus,  defeat 
the  plaintiff's  recovery  ;  or  where  the  defect  produces  only  a  partial  diminution  of  value,  he 
may  shew  that  fact  in  mitigation  of  damages.  Beecker  v.  Vrooman,  13  J.  R.  302.  So,  in 
an  action  on  a  promissory  note,  given  for  the  price  of  a  chattel,  the  defendant  may,  under 
the  general  issue,  shew  fraud  in  the  sale.  Sill  v.  Rood,  15  J.  R.  230.  M'Doivell  v.  Burd,  6 
Binn.  198.  See  Hills  v.  Bannister,  8  Cowen,  31.  Thornton  v.  Wynn,  12  Wheat.  183.  And 
upon  the  same  equitable  principle,  it  would  seem,  that  the  execution  of  a  contract  for  the 
sale  of  goods,  may  be  resisted  by  the  vendor,  by  withholding  the  delivery,  where  the  vendee 
has  been  guilty  of  any  fraud  or  deception  in  the  transaction  :  But  still,  the  vendee  is  under 
no  legal  obligation  to  communicate  to  the  vendor,  at  the  time  of  the  sale,  any  political  intelli- 
gence exclusively  within  his  own  knowledge;  such,  for  example,  as  the  news  of  peace  or 
war,  which  might  affect  the  price  of  the  commodity  ;  yet,  each  party  must  be  careful  not  to 
do  or  say  any  thing  calculated  to  deceive  or  impose  upon  the  other :  And  the  decision  of  the 
question  whether  any  fraud  or  imposition  has  been  practised  by  the  vendee  upon  the  vendor  ? 
is,  exclusively,  within  the  province  of  the  jury.  Laidlaw  v.  Organ,  2  Wheat.  178,  195.  On 
the  last  point,  see  Ward  v.  Center,  3  J.  R.  271.    See  ante,  notes  73,  80. 

*186 


Chap.  1.]  Of  Credit  and  Payment  upon  the  sale  of  Goods.  1S6 

in  the  case  of  Grimaldi  v.  While, (n)  which  was  an  action  of  assumpsit  for 
work  and  labour,  &c.  The  defendant  paid  a  certain  sum  of  money  into  court, 
and  pleaded  the  general  issue  of  non  assumpsit.  The  action  was  brought  by 
the  plaintiff,  who  was  a  miniature  painter,  to  recover  the  value  of  several 
pictures  painted  by  him  for  the  defendant.  Upon  the  trial  it  was  proved, 
that  the  plaintiff  painted  miniatures  of  different  sizes,  according  to  which 
the  prices  varied.  Specimens  were  hungup  in  his  apartment,  numbered  ;  and 
the  prices  put  opposite  to  the  number.  The  price  opposite  No.  8.  was 
fifteen  guineas,  which  number  the  defendant  had  had.  The  pictures  had  been 
sent  home,  and  the  defendant,  at  the  time,  objected  to  the  execution,  as  being 
inferior  to  the  specimen  exhibited  by  the  plaintiff;  but  he  had  not  returned 
them.  The  defence,  upon  which  it  was  intended  to  rely,  was  this  inferiority 
of  execution,  and  of  course  of  value ;  and  the  defendant's  counsel  were  pro- 
ceeding to  call  witnesses,  who  were  judges,  and  who  had  seen  the  pictures,  to 
prove,  that  at  fifteen  guineas  they  were  infinitely  overcharged,  and  to  ascer- 
tain what  was  the  real  value.  This,  however,  was  objected  to  by  the  plaintiff's 
counsel.  And  Lawrence  J.,  before  whom  the  cause  was  tried,  said,  "  In 
this  case  it  is  in  evidence,  that  the  charges  of  the  plaintiff  are  regulated  by  the 
different  sizes  of  the  pictures,  which  he  exhibits  as  specimens  of  his  art,  and  for 
which  he  charges  the  different  sums  set  opposite  to  the  numbers.  It  is  proved, 
that  he  has  delivered  several  pictures  to  the  defendant  of  the  size  which  he 
ordered,  and  which  the  defendant  received,  and  has  not  returned.  The  defen- 
dant relies  on  the  circumstances,  that  they  are  of  an  execution  very  inferior 
to  the  specimens  exhibited,  and  which  the  plaintiff  undertook  to  paint  conform- 
able to.  Where  an  artist  exhibits  specimens  of  his  art  and  skill  as  a  paint- 
er, and  affixes  a  certain  price  to  them,  if  a  person  is  induced  to  order  a  pic- 
turefrom  an  approbation  of  such  specimens,  and  the  execution  of  it,  when  de- 
livered, is  inferior  to  the  specimen  exhibited,  he  has  a  right  to  refuse  to  receive 
it,  and  to  return  it,  as  not  being  conformable  to  that  performance  which  the 
painter  undertook  to  execute  ;  but  if  he  means  to  avail  himself  of  that  objec- 
tion, he  must  return  the  pictures,  he  must  rescind  the  contract  totally.  Hav- 
ing received  it  under  a  specific  contract,  he  must  either  *abide  by  it,  or  rescind 
it  in  toto,  by  returning  the  thing  sold  ;  but  he  cannot  keep  the  article  received 
under  such  a  specific  contract,  and  for  a  certain  price,  and  pay  for  it  at  less  price 
than  that  charged  by  the  contract."  The  plaintiff  accordingly  had  a  verdict 
for  the  full  charge. 

3.  When  the  stipulated  Price  may  be  reduced  to  a  quantum 
valebant.] — In  an  action  for  the  agreed  price  of  goods  sold  by  sample  or  war- 
ranty, it  is  competent  to  the  vendee  to  prove,  that  the  goods  do  not  correspond 
with  the  sample  or  warranty,  and  that  they  are  much  inferior  in  quality  and 
price  to  those  contracted  for,  in  order  to  shew  the  real  value  of  the  goods,  and 
to  prevent  the  vendor  from  receiving  the  stipulated  price.(u)     And  it  was  once 


(u)    4  Esp.  Rep.  95. 

(t>)   Gertnaine  v.  Barton,  3  Stark.  32.,  and  the  cases  there  cited  in  note  a. 

24  »187 


187  Of  Credit  and  Payment  upo?i  the  sale  of  Goods.  [Part  II. 

doubted  by  Lord  Ellenborough  Ch.  J.,  in  the  case  of  Fisher  v.  Samuda,(w) 
whether  the  vendee  of  goods,  which  had  been  sold  upon  a  warranty,  after  an 
acti  on  had  been  brought  against  him  by  the  vendor  for  the  stipulated  and  agreed 
price,  and  in  which  he  did  not  either  in  bar  of  the  action,  or  to  reduce  the  dam- 
ages, make  any  objection  to  the  quality  or  value  of  the  goods,  but  allowed  the 
vendor  to  recover  the  full  sum  agreed  to  be  paid,  could  maintain  an  action  for 
damages  for  a  breach  of  the  warranty.  But  where  goods  have  been  sold  by 
sample  at  a  stipulated  price,  and  they  turn  out  upon  examination,  to  be  inferior 
to  the  sample,  and  an  action  of  indebitatus  assumpsit  is  brought  for  the  amount? 
and  in  which  action  the  buyer  pays  into  court  a  sum  short  of  the  agreed  price,  as 
upon  a  quantum  valebant,  not  having  previously  returned  or  offered  to  return  the 
goods,  Lord  Ellenborough  Ch.  J.  held,  that  the  buyer  was  precluded  from  going 
into  evidence  of  any  defects  in  the  goods,  or  of  their  real  value,  upon  the  ground 
that  by  payment  of  money  into  Court,  he  admits  the  contract  and  the  price,  and 
loses  the  ground  of  defence  which  he  might  have  had,  in  not  making  the  objec- 
tion in  proper  time,   and  returning  the  goods,  or  offering  to  return  them.(x) 

So,  where  a  bill  of  exchange  is  given  in  payment  for  the  price  of  goods  sold5 
and  the  goods  be  but  partially  inferior  to  those  which  were  ordered  and   war- 
ranted, the  buyer  cannot  legally  defend  himself  against  the  payment  of  the 
whole  amount  of  the  bill,  but  his  only  remedy  in  such  case  is,  by  action  for 
damages  upon  the  warranty.     This  was  settled  in  the  case  of  Morgan  v.  Rich- 
ards,{y)  which  was  an  action  against  the  acceptor  of  a  bill  of  exchange  at  the 
suit  of  the  drawer,  the  bill  being  payable  to  his   own  order.     The    defence 
was,  that   the  bill  had  been  accepted  for  the  price  of  some  hams  bought  by 
the   defendant  from  the   plaintiff,  to  be  sent  to  the  East  Indies,  and  that  the 
hams    had   turned   out  so  very    bad,  that  they   were    almost   quite   unmar- 
ketable ;  the  sum  *for  which  they  actually  sold   was   paid  into  Court.     Lord 
Ellenborough  held,  "  that  though  where  the  consideration  of  a  bill  of  exchange 
fails  entirely,  this  will  be  a  sufficient  defence  to  an  action  upon   it  by  the  origi- 
nal party ;  it  is  no  defence  to  such  action  that  the  consideration  fails  partially, 
but  that  under  6uch  circumstances,  the  giver  of  the  bill  must  take  his  remedy 
by  an  action  against  the  person  to  whom  it  was  given." 

So,  in  the  case  of  Fleming  v.  Simpson,  (z)  which  was  also  an  action  by  the 
indorsee  of  a  bill  of  exchange  against  the  acceptor.  This  bill  was  drawn  by 
Fleming,  Goodall,  and  Co.,  and  accepted  by  the  defendant  for  the  amount  of  a 
pipe  of  best  London  particular  Madeira,  which  he  had  ordered  of  them.  The 
defence  set  up  was,  that  the  wine  was  of  very  bad  quality  when  delivered  in 
London,  and  could  notjiave  been  best  London  particular  Madeira  when  ship' 
ped,  and  that  the  indorsee  was  a  partner  in  the  house  of  the  shippers.  But 
Lord  Ellenborough  said,  "  By  delivery  on  board  the  ship,  the  wine  became 
the  property  of  the  defendant,  and  he  must  bear  all  risks,  and  bring  his  action 

(to)    1  Campb.  190.  Clifton,   2  Wils.    319.      Baxter  v.  Butler,  7 

(x)  Leggeli  v.  Cooper,  2  Stark.  103.  East  Rep.  479.  and  the  cases  there  cited, 

(t/)   1  Campb.  40,  n.  a.      Et  vide  Dixon  v.         (r)   1  Campb.  40.  n.  a. 

♦188 


Chap.  1.]  Of  Credit  and  Payment  upon  the  sale  of  Goods.lS8 

against  the  captain  if  the  wine  be  spoiled  in  its  passage.  To  sustain  this  de- 
fence, it  must  be  shewn  not  only  that  the  plaintiff  is  a  partner  in  the  house  of 
Fleming,  Goodall,  and  Co.,  who  drew  the  bill,  but  that  there  was  a  fraud  on 
their  part  in  the  first  instance,  in  shipping  a  commodity  of  a  different  and  very 
inferior  quality  to  that  ordered.  If  it  was  a  clear  fraud  in  the  shippers,  and 
the  plaintiff  was  a  partner  in  their  house,  he  could  not  recover  on  this  bill ;  but 
this  defence  is  not  sufficient,  if  the  commodity  shipped  be  only  of  rather  an  in- 
ferior quality  of  that  ordered.1* 


189  Of  a  Guarantee,  $-c.  [Part  II. 


*CHAPTER    II. 


OF  A  GUARANTEE  OR  PROMISE  TO  BE  ANSWERABLE  FOR  THE 
DEBT  OR  DEFAULT  OF  ANOTHER. 


The  subject  matter  of  this  chapter  may  be  considered  under  the    following 
heads,  viz. 

1.  OF  THE  GENERAL  NATURE  OF  A  GUARANTEE;  AND  OF  THE 
STATUTE  OF  FRAUDS  RELATING  THERETO,  AND  WHAT  PROMISES 
DO  OR  DO  NOT  FALL  WITHIN  IT. 

2.  OF  THE  CONSTRUCTION  OF  A  GUARANTEE,  AND  ITS  EXTENT  AND 
CONTINUANCE;  AND  ALSO  ITS  DURATION  WHEN  GIVEN  TO  A 
PARTNERSHIP  FIRM,  &c. 

3.  OF  PROMISES  TO  BE  ANSWERABLE  FOR  THE  DEBT  OR  DEFAULT 
OF  ANOTHER,  IN  CONSIDERATION  OF  FORBEARANCE  TO  SUE;  OR 
OF  DISCHARGING  THE  DEBTOR,  OR  OF  GIVING  UP  SECURITIES,   &c. 

4.  OF  AGREEMENTS  TO  PAY  A  PRECEDENT  DEBT  ON  THE  CREDIT- 
OR'S PROVING  IT  DUE  UPON  OATH  ;  OR  OF  THE  DEBTOR'S  FAILING 
TO  PROVE  PAYMENT. 

5.  OF  AGREEMENTS  TO  PAY  A  DEBT,  &c  ON  DELIVERING  UP  GOODS, 
&c.  SEIZED  IN  EXECUTION,  OR  UNDER  A  DISTRESS  FOR  RENT. 

6.  OF  AGREEMENTS  MADE  WITH  SHERIFF'S  OFFICERS  UPON  THE  AR- 
REST OF  A  THIRD  PERSON,  EITHER  TO  PUT  IN  AND  JUSTIFY  BAIL, 
OR  TO  PAY  THE  DEBT,  &c.  IN  CONSIDERATION  OF  THEIR  LETTING 
HIM  OUT  OF  CUSTODY  WITHOUT  A  BAIL  BOND. 

7.  WHAT  ACTS  DONE  BY  THE  CREDITOR  WILL  DISCHARGE  THE 
GUARANTEE. 

8.  OF  THE  APPLICATION  OF  PAYMENTS  MADE  BY  A  DEBTOR  TO  HIS 
CREDITOR  WHILST  A  GUARANTEE  IS  IN  FORCE. 

9.  OF  NOTICE  TO  A  SURETY  UPON  DEFAULT  MADE  BY  THE  PRINCI- 
PAL. 


*1.  OF  THE  GENERAL  NATURE  OF  A  GUARANTEE;  AND  OF  THE  STAT- 
UTE OF  FRAUDS  RELATING  THERETO,  AND  WHAT  PROMISES  DO 
OR  DO  NOT  FALL  WITHIN  IT. 


A  guarantee  is   generally  understood,  in   a  legal  sense,   to  mean  a  prom- 
ise or  an  engagement  to  be  answerable  for  the  debt  or  default  of  a  third  per- 
*189   *190 


Chap.  2.]      For  the  Debt  or  Default  of  Another.  190 

son :  and  to  make  such  an  obligation  binding,  there  must  be  some  good 
consideration  moving  from  the  party  with  whom  it  is  made  ;  as  for  instance, 
the  sale  and  delivery  of  goods  to,  or  work  to  be  done  on  credit  for  the  person  on 
whose  behalf  the  guarantee  is  given  ;  or,  in  consideration  of  a  creditor's  giving 
time,  or  forbearing  to  sue  his  debtor  for  a  precedent  debt,  and  the  like.  It 
must  also  be  reduced  into  writing,  and  signed ;  and  the  consideration  must  be 
set  forth  ;  for  by  the  second  branch  of  the  4th  clause  of  the  statute  of  frauds 
29  Car.  2.  c.  3.  it  is  enacted,  "  that  no  action  shall  be  brought,  whereby  to 
charge  the  defendant  upon  any  special  promise  to  answer  for  the  debt,  default, 
or  miscarriages  of  another  person  ;  unless  the  agreement  upon  which  such  ac- 
tion shall  be  brought  or  some  memorandum  or  note  thereof,  shall  be  in  writing, 
and  signed  by  the  party  to  be  charged  therewith,  or  some  other  person  thereunto 
by  him  lawfully  authorized."(104)  Now  in  this  clause  of  the  statute,  though  it  is 
expressly  declared,  that  the  promise  must  be  to  answer  for  the  debt,  default,  or 
miscarriage  of  another,  yet  many  questions  have  arisen  upon  the  application  of 
these  words  to  particular  transactions.  One  of  the  leading  cases  on  this  sub- 
ject is,  that  of  Buckmyr  v.  Darnall,(a)  which  was  an  action  of  assumpsit, 
wherein  the  plaintiff  declared,  that  the  defendant,  in  consideration  that  the 
plaintiff  at  the  request  of  the  defendant  would  let  to  hire  and  deliver  to  one  Jo- 
seph English  a  gelding  of  the  plaintiff's  to  ride  to  Reading  in  the  county  of  Berks, 
undertook  and  promised  the  plaintiff  that  the  said  Joseph  would  deliver  the 
said  gelding  to  the  plaintiff.  At  the  trial  before  Holt  Ch  J.,  the  counsel  for  the 
defendant  insisting,  that  the  plaintiff  ought  to  produce  a  note  in  writing  of  this 
promise  within  the  statute  of  frauds ;  and  the  Chief  Justice  doubting  of  it,  a 
case  was  made  for  the  opinion  of  the  other  judges.  And  it  was  argued  for  the 
defendant,  that  this  case  was  within  the  statute  of  frauds  ;  for  it  was  a  promise 
to  answer  for  the  default  and  miscarriage  of  the  person  the  horse  was  lent  to  ; 
that  the  very  letting  out  and  delivery  of  the  horse  to  English,  implied  a  con- 
tract by  English  to  re-deliver  it,  and  he  was  bound  by  law  so  to  do,  and  con- 
sequently the  defendant  was  to  answer  for  the  default  of  another.  To 
this  it  was  answered  for  the  plaintiff,  that  here  the  credit  was  wholly  given 
to  the  defendant ;  that  the  rule  mentioned  by  the  *counsel  on  the  other  side 
must  be  understood,  where  an  action  does  or  does  not  lie  against  the  party 
himself  on  the  contract,  and  not  where  an  action  does  or  does  not  lie  against 
him  upon  collateral  respects.  And  therefore  in  this  case  for  an  actual  conver- 
sion, or  for  refusing  to  re-deliver  the  horse,  English  might  be  charged  in  trover 

(a)  2  Lord   Raym.  10S5.  6  Mod.  248.  S.C. 


(104)  The  rule  is  well  established,  that  a  promise  to  answer  for  the  debt,  default  or  mis- 
carriages of  another  person,  collateral  to  the  principal  contract,  though  made  on  suificient 
consideration,  must  be  in  writing.  This  rule  is  sanctioned  bv  all  the  authorities.  Simpson 
v.  Patten,  4  J.  R.  422.  Jackson  v.  Rayner,  12  J.  R.  291.  Waggoner  v.  Gray,  2  Hen.  &. 
Munf.  603.  Turner  v.  Hubbell,  2  Day,  457.  Peabody  v.  Harvey,  4  Conn.  Rep.  1 19.  Floyd  v. 
Harrison,  4  Bibb.  76.  Tilestonv.  Nettleton,  6  Pick.  509.  Sears  V.  Brink,  3  J.  R.  211.  Leland 
y.Creyon,  1  M'Cord,  100.     Boyce  v.  Owens,  2  M'Cord,  208. 

*191 


191   Of  a  Guarantee  or  Promise  to  be  Answerable  [Part  II. 

or  detinue  ;  yet  he  being  not  chargeable  upon  the  contract,  the  case  was  not 
within  the  statute.  That  this  contract  could  not  be  said  properly  to  be  a  pro- 
mise to  answer  for  the  default  or  miscarriage  of  another,  unless  English  were 
liable  by  the  first  contract.  The  Chief  Justice,  after  several  arguments,  de- 
livered the  opinion  of  the  court :  he  said  "  that  the  question  had  been  pro- 
posed at  a  meeting  of  the  judges,  and  that  there  had  been  a  great  variety  of 
opinions  between  them,  because  the  horse  was  lent  wholly  upon  the  credit  of 
the  defendant ;  but  that  the  judges  of  the  Court  of  King's  Bench  were  all  of 
opinion  that  the  case  was  within  the  statute.  The  objection  that  was  made 
was,  that  if  English  did  not  re-deliver  the  horse,  he  was  not  chargeable  in  an 
action  upon  the  promise,  but  in  trover  or  detinue,  which  are  founded  upon  the 
tort,  and  are  for  a  matter  subsequent  to  the  agreement.  But  I  answered,  that 
English  may  be  charged  on  the  bailment  in  detinue  on  the  original  delivery, 
and  a  detinue  is  the  adequate  remedy,  and  upon  the  delivery  English  is  liable 
hi  detinue,  and  consequently  this  promise  by  the  defendant  is  collateral,  and  is 
within  the  reason  and  the  very  words  of  the  statute  ;  and  is  as  much  so,  as  if, 
where  a  man  was  indebted,  J.  S.  in  consideration  that  the  debtee  would  forbear 
the  mr.n,  should  promise  to  pay  him  the  debt ;  such  a  promise  is  void  unless  it 
be  in  writing.  Suppose  a  man  comes  with  another  to  a  shop  to  buy,  and  the 
shop-keeper  should  say,  '  I  will  not  sell  him  the  goods,  unless  you  will  under- 
take he  shall  pay  me  for  them,'  such  a  promise  is  within  the  statute :  other- 
wise, if  the  man  had  been  the  person  to  pay  for  the  goods  originally.  So 
here,  detinue  lies  against  English  the  principal ;  and  the  plaintiff  having  this 
remedy  against  English  the  principal,  cannot  have  an  action  against  the  de- 
fendant the  undertaker,  unless  there  had  been  a  note  in  writing." 

So,  if  A.  promises  B.,  being  a  surgeon,  that  if  he  will  cure  D.  of  a  wound  he 
will  see  him  "paid ;  this  is  only  a  promise  to  pay  if  D.  does  not,  and  therefore, 
it  ought  to  be  in  writing  by  the  statute  of  frauds.  But  if  A.  promise  in  such  a 
case,  that  he  will  be  B.'s  paymaster,  whatever  he  shall  deserve,  it  is  immedi- 
ately the  debt  of  A.  and  he  is  liable  without  writing,  (b)  There  is  a  distinc- 
tion between  a  conditional  and  an  absolute  undertaking ;  as  if  A.  promise  to 
pay  B.  such  a  sum  if  C.  does  not,  there  A.  is  but  a  security  for  C.  But  if  A. 
promise  that  C.  will  pay  such  a  sum,  A.  is  the  principal  debtor ;  for  the  act 
done  was  on  his  credit,  and  no  way  upon  the  credit  of  C.(c)  (105) 

(6)  Per  Holt,  Ch.  J.  1  Lord  Raym.  224.  (c)  Per  Lee  Ch.  J.  Fitzgib.  303. 

(105)  Undertakings  to  answer  for  the  debt,  default  or  miscarriages  of  another  person, 
are  said  to  be  either  collateral  or  original.  In  either  case,  a  sufficient  consideration  is  indis- 
pensable :  And  if  the  undertaking  be  collateral,  it  must  also  be  in  writing,  and  signed  by 
the  party,  or  his  agent.  The  law  is  well  settled,  that  if  the  person,  on  account  of  whose 
debt,  default  or  miscarriage  the  undertaking  is  made,  be  in  any  manner  liable  for  the  same, 
so  that  the  whole  responsibility  does  not  rest  upon  the  guarantor,  the  undertaking  is  col- 
lateral. This  principle  is  illustrated  by  the  following  cases.  Turner  v.  Hubbell,  2  Day, 
457.  Simpson  v.  Patten,  4  J.  R.  422.  Jackson  v.  Rayner,  12  J.  R.  291.  Peabody  v.  Har- 
vey, 4  Conn.  Rep.  119.  Huntington  v.  Harvey,  Id.  124.  Gallager  v.  Brunei,  6  Cowen,  346. 
Tileston  v.  Nettleton,  6  Pick.  509.     Waggoner  v.  Gray's  Admrs.  2  Hen.  &  Munf.  603.    Floyd 


Chap.  2.]    For  the  Debt  or  Default  of  Another.  192 

•With  respect,  however,  to  the  sale  of  goods,  the  settled  rule  now  is,  that  if 
the  person  for  whose  use  the  goods  are  furnished,  be  li;  ble  at  all,  any  other 
promise  by  a  third  person  to  pay  that  debt  must  be  in  writing,  otherwise  it  is 
void  by  the  statute.(d)(106)  Thus,  in  the  case  of  Jones  v.  Cooper,(e)  which  was 
an  action  for  goods  sold  and  delivered  :  the  facts  were  these  ;  the  defendant 
had  frequently  given  written  orders  to  the  plaintiff  to  deliver  goods  of  diffe- 
rent kinds  to  one  Smith,  her  son-in-law  ;  in  all  of  which  she  undertook  to  be 
answerable  for  the  payment.  These  had  been  all  punctually  discharged.  But 
the  goods  upon  which  the  present  question  arose  were  delivered  to  Smith,  in 
consequence  of  a  parol  order,  and  a  parol  promise  by  the  defendant  in  these 
words  :  "  I  will  pay  you  if  Smith  will  not."  That  the  undertaking  was  before 
the  delivery  of  the  goods ;  but  that  Smith  was  entered  as  the  debtor  in  the 
plaintiff's  books.  The  Court  determined,  that  the  promise  by  the  defendant  in 
this  case  to  pay  if  Smith  did  not,  is  a  collateral  undertaking  within  the  statute 
of  frauds :  they  said,  "  it  is  so  clear  that  it  would  only  be  mis-spending  time 
to  go  through  the  cases,  or  to  say  much  about  it." 

So,  in  the  case  of  Malson  and  another  v.  Wharam,  (f)  which  was  also  an 
action  for  goods  sold  and  delivered :  and  the  facts  were  as  follow  ;  in  January 
1785,  the  defendant  Wharam  applied  to  Matson,  one  of  the  plaintiffs,  and 
asked  him  if  he  was  willing  to  serve  one  Robert  Coulthard  of  Pontefract  with 
groceries  ;  he  answered  they  dealt  with  nobody  in  that  part  of  the  country,  and 
did  not  know  Coulthard  ;  to  which  the  defendant,  Wharam,  replied,  "  If  you 
do  not  know  him,  you  know  me,  and  I  will  see  you  paid.'1''  Matson  then  said  he 
would  serve  him  ;  and  Wharam  answered,  "  He  is  a  good  chap,  but  I  will  see 
you  paid."  A  letter  was  afterwards  received  by  the  plaintiffs  from  Coulthard, 
containing  an  order  for  goods  to  the  amount  of  71.  and  the~goods  were  afterwards 
sent  to  Coulthard  accordingly.  The  plaintiffs  made  Coulthard  the  debtor  for 
these  goods  in  their  books.  They  afterwards  applied  to  Coulthard  for  pay- 
ment of  the  debt  by  letter,  and  receiving  no  answer,  they  then  applied  to  the 
defendant,  Wharam,  who  refused  to  pay  the  money.  There  was  no  promise 
in   writing  made  by  the  defendant ;  and  the  question  for  the  opinion  of  the 


(d)  Per  Buller  J.  2  Term  Rep.  81.  (/)  2  Term  Rep.  80. 

(e)  Cowp.227. 


v.  Harrison,  4  Bibb.  76.  See  Elting  v.  Vanderlyn,  4  J.  R.  237.  Leonard  v.  Vredenburgh, 
8  J.  R.  23.  2d  edit. 

But,  if  the  party  for  whom  the  promise  is  made,  be  under  no  liability  on  account  of  the 
particular  debt,  default  or  miscarriage,  for  which  the  guaranty  is  given,  and  the  whole  re- 
sponsibility be  assumed  by  the  promisor,  the  undertaking  is  original,  and  not  within  the 
statute.  Upon  the  preceding  general  principle,  the  following  cases  were  decided.  Jlllaire 
v.  Ouland,  2  J.  C.  52.  Harrison  v.  Sawtel,  10  J.  R.  242.  Perky  v.  Spring,  12  Mass.  Rep. 
297.  Duval  v.  Trask,  Id.  154.  Toionsley  v.  Sumrall,  2  Peters,  1S2.  Farley  V.Cleveland, 
4  Cowen,  432.  Skelton  v.  Brewster,  8  J.  R.  293.  2d  edit.  Stocking  v.  Sage,  1  Conn.  Rep. 
519.  Gold  v.  Phillips,  iO  J.  R.  412.  Myers  v.  Morse,  15  J.  Rep.  425.  Chase  v.  Day,  17  J. 
R.  114.  Shngerland  v.  Morse,  7  J.  R.  463.  Mease  v.  Wagner,  1  M'Cord,  395.  Madden  v. 
M'Cray,  Id.  486.     Olmstead  v.   Greenley,   18  J.  R.  12. 

(106)  Lelandv.  Creyon,  1  M'Cord,  100.  Tilestonx.  Nettleton,  6  Pick.  509.  A  promise  to 
indorse  the  note  of  a  third  person,  by  which  he  obtains  credit,  to  be  binding,  must  be  in 
writing.     Gallager  v.  Brunei,  6  Cowen,  34C. 

*192 


192    Of  a  Guarantee  or  Promise  to  be  Answerable  [Part  II. 

Court  was,  whether  the  plaintiffs  were  entitled  to  recover.  The  Court  were 
of  opinion,  that  this  was  a  collateral  promise  to  pay  in  case  Coulthard  did  not, 
and    therefore  within  the  statute  ;  consequently  the  plaintiff  was  not  entitled  to 

recover. 

And  in  another    case  of  Anderson  v.  Hayman  (g)   which  was  an  action  of 
assumpsit :  at  the  trial,  the  jury  found  a  verdict  for  the  defendan  on  these  facts  : 
the  plaintiff  was  a  woollen-draper  in  London,  and  employed  one  Biffin  as  a  rider 
to  receive  orders  from  his  customers  in  the  country.     *The  defendant  meeting 
with  Biffin  at    Deal,  desired  him  to  write  to  the  plaintiff,  requesting  him  to   sup- 
ply  the  defendant's  son  (who  traded  to  the  West  Indies)  with   whatever  goods 
he  might  want,  on  his,  the  defendant's  credit,  and  at  the  same  time   said,  "  Use 
my  son  well,  charge  him  as  low  as  possible,  and  I  will  be   bound    for  the  pay- 
ment of  the  money  as  far  as  800/.  or  1000/."     Biffin    accordingly  wrote  to  the 
plaintiff  the  following  letter  ;  "  Mr.  Hayman  of  this  town  says  his  son  will  call 
on  you  and  leave  orders,  and  he  has  promised  me  to  see  you  paid  if  it  amounts 
to  1000/.     Mr.    William  Pitches  was  also  present  as    a  witness."     N.  B.   "  If 
deal  for  12  months'  credit,  and  pay  in  6  or  8  months,  expects   discount  in   pro- 
portion."— Soon  after  the    son  received  goods  from  the  plaintiff  to  the    amount 
of  800/.  which  were  delivered  to  him  in  consequence  of  the  above-mentioned  or- 
der from  the  father.     The  son  was  debited  in  the  plaintiff's  books,    and  being 
applied  to  for  payment,  wrote  an  answer  to  the  plaintiff  as  follows  ;  "  Your  fa- 
vour of  the  27th  past  has  been  forwarded  to    me  from  Ostend  by  my   clerk,  in 
answer  to  which  I  can  only  say,  that   I  understood  your  credit  for   the  goods 
was  12  months,  which  was  also  mentioned  by  your  rider  to  my  father.     I  shall 
at  this  rate  make  you   remittances  for  the  different   parcels  as  they  come   due, 
and  remain,  &c.      Thomas  Hayman,  junior."     The  son   afterwaids  became  a 
bankrupt,  and  this  action  was  brought    against  the  father,  to  recover  the   value 
of  the  goods.     The  Court,  on  a  motion  for  a  new  trial,  were  clearly  of  opinion, 
that  this  promise,  not  being  in  writing,  was  void  by  the   statute  of  frauds,  as  it 
appeared  from  the  evidence  of  the  letter  of  Hayman  the    younger,   that  credit 
was  given  to  him,  as  well  as  the  defendant. 

But,  in  the  case  of  Harris  v.  Huntbach,(h)  which  was  an  action  for  money 
lent ;  the  question  for  the  opinion  of  the  Court  was,  whether  the  promise  was 
a  collateral  or  original  undertaking.  It  appeared  from  the  evidence,  that  one 
Davidson  coming  to  the  plaintiff  by  the  defendant's  order  for  money  to  pay 
workmen,  the  plaintiff  refused  to  pay  the  money  unless  the  defendant  would 
sign  a  receipt.  Whereupon  the  defendant  wrote  the  following  note,  viz.  "  Mr. 
Harris  at  the  request  of  the  gardener,  the  workmen  wanting  money  greatly,  for 
the  work  at  the  woodhouses,  this  is  to  certify  that  it  is  my  request  you  pay  to  Mr. 
Davidson,  on  the  account  of  Master  Hillier,  for  the  workmen's  use,  the  sum  of 
15/.  as  witness  my  hand,  S.  Huntbach,"  and  a  receipt  was  given  by  the  said 
Davidson,  the  gardener,  to  the  plaintiff,  on  the  plaintiff's  paying  him  this    15/. 


(g)   1  H.  Bl.  120.  (fc)  1  Bur.  373. 

*193 


Chap.  2  J     For  the  Debt  or  Default  of  Another.  193 

It  also  appeared  that  Master  Hillier,  at  the  time  the  money  was  advanced,  was 
an  infant,  and  that  the  woodhoiises  belonged  to  him.  The  Court  determined, 
that  the  note  amounted  to  an  *original  undertaking  ;  and  that  there  was  nothing 
like  a  collateral  request  or  promise.  And  Foster  Just,  said,  "  The  infant  was 
not  liable,  and  therefore  it  could  not  be  a  collateral  undertaking.  It  was  an 
onVjnaZ  undertaking  of  the  defendant." 

It  is,  however,  in  many  cases  very  difficult  to  discover  from  the  mere  ex- 
pressions of  the  party,  to  whom  the  credit  was  originally  given  ;  and  therefore, 
in  some  instances,  it  is  deemed  necessary  to  take  into  consideration  not  only 
the  expressions  used,  but  the  particular  situation  of  the  defendant  at  the  time  of 
his  undertaking.  Thus,  in  the  case  of  Keale  v.  Temple,  (?)  which  was  an  ac- 
tion for  goods  sold  and  delivered,  and  work  and  labour.  The  principal  facts 
proved  at  the  trial,  before  Lawrence  Just.,  were  these  :  The  plaintiff  was  a  tai- 
lor and  slop-seller  at  Portsmouth,  and  the  defendant  the  first  lieutenant  of  his 
Majesty's  ship  the  Boy  tie.  When  that  ship  came  into  port,  the  defendant  ap- 
plied to  a  third  person  to  recommend  a  slop-seller  who  might  supply  the  crew 
with  new  cloaths,  saying,  "  He  will  run  no  risk  ;  I  will  see  him  paid."  The 
plaintiff  being  accordingly  recommended,  the  defendant  called  upon  him  and 
used  these  words,  "  I  will  see  you  paid  at  the  pay-table  ;  are  you  satisfied  V 
He  answered,  "perfectly  so,"  The  cloaths  were  delivered  on  the  quarter  deck 
of  the  Boyne  ;  slops  are  usually  sold  on  the  main  deck  ;  the  plaintiff  produced 
samples  to  ascertain  whether  his  directions  had  been  followed  ;  some  of  the  men 
said  that  they  were  not  in  want  of  any  cloaths,  but  were  told  by  the  defendant 
that  if  they  did  not  take  them  he  would  punish  them  ;  and  others,  who  stated 
that  they  were  only  in  want  of  a  part  of  a  suit,  were  obliged  to  take  a  whole 
one,  with  anchor  buttons  to  the  jacket,  such  as  are  usually  worn  by  petty  officers 
only.  The  cloathing  of  the  crew  in  general  was  light,  and  adapted  to  the 
climate  of  the  West  Indies,  where  the  ship  had  been  last  stationed.  Soon  after 
the  delivery,  the  Boyne  was  burnt ;  and  the  crew  dispersed  into  different 
ships.  On  that  occasion  the  plaintiff,  having  expressed  some  apprehensions  for 
himself,  was  told  by  the  defendant,  "  Captain  Grey  (the  captain  of  the  Boyne) 
and  I  will  see  you  paid  ;  you  need  not  make  yourself  uneasy."  After  [this  the 
commissioner  came  on  board  the  Commerce  tie  Marseilles,  in  order  to  pay  the 
crew  of  the  Boyne ;  at  which  time  the  defendant  stood  at  the  pay-table,  and 
having  taken  some  money  out  of  the  hat  of  the  first  man  who  was  paid,  gave 
it  to  the  plaintiff  ;  the  next  man  refused  to  part  with  his  pay,  and  was  immedi- 
ately put  in  irons.  The  defendant  then  asked  the  commissioner  to  stop  the 
pay  of  the  crew,  who  answered  that  it  could  not  be  done. 

The  learned  judge,  before  whom  the  cause  was  tried,  in  his  direction  to  the 
jury,  said,  "that  if  they  were  satisfied  on  the  evidence,  that  the  goods  in  ques- 
tion were  advanced  on  the  credit  of  the  defendant,  *as  immediately  responsi- 
ble, the  plaintiff  was  entitled  to  a  verdict;  but  if  they  believed,  that  at  the  time 
when  the  goods  were  furnished,   the  plaintiff  relied  on  being  able,  through  the 


(i)  1  Bos.  &Pul.  158. 
25  *194  *195 


195  Of  a  Guarantee  or  Promise  to  be  Answerable    [Part  II. 

assistance  of  the  defendant  to  get  his  money  from  the  crew,  they  ought  to  find 
for  the  defendant."  The  jury  found  a  verdict  for  the  plaintiff  576Z.  7s.  Sd. 
But  the  Court  afterwards  directed  a  new  trial ;  and  Eyre  Ch.  J.  said,  "  There 
is  one  consideration,  independent  of  every  thing  else,  which  weighs  so  strongly 
with  me  that  I  should  wish  this  evidence  to  be  once  more  submitted  to  a  jury. 
The  sum  recovered  is  5767.  7s.  8d. ;  and  this  against  a  lieutenant  of  the  navy ; 
a  sum  so  large  that  it  goes  a  great  way  towards  satisfying  my  mind  that  it 
never  could  have  been  in  the  contemplation  of  the  defendant  to  make  himself 
liable,  or  of  the  slop-seller  to  furnish  the  goods  on  his  credit  to  so  large  an 
amount.  And  the  question  is,  whether  the  slop-seller  did  not  in  fact  rely  on 
the  power  of  the  officer  over  the  fund  out  of  which  the  men's  wages  were  to 
be  paid,  and  did  not  prefer  giving  credit  to  that  fund  rather  than  to  the  lieu- 
tenant, who,  if  we  are  to  judge  of  him  by  others  in  the  same  situation,  was 
not  likely  to  be  able  to  raise  so  large  a  sum  ?  Considering  the  whole  bearing 
of  this  evidence,  I  think  this  a  proper  case  to  be  sent  to  a  new  trial." 

Besides  the  cases  already  cited,  there  are  many  others,  in  which  several  dis- 
tinctions have  been  taken,  as  to  what  promises  do  or  do  not  fall  within  this 
clause  uf  the  statute  ;  and  from  the  whole,  the  following  points  may  be  consid- 
ered as  settled ;  first,  that  where  the  party  promising  is  in  any  respect  liable  to 
the  original  debt  or  duty,  either  alone  or  jointly  Avith  others,  such  promise  is  not 
within  the  statute  ;  secondly,  if  the  promise  be  made  upon  a  consideration  mov- 
ing to  the  party  promising,  it  is  also  out  of  the  statute,  even  though  it  be  to  an- 
swer solely  for  the  debt  or  default  of  another.  But  thirdly,  where  the  consider- 
ation is  a  mere  indulgence  or  forbearance  to  the  debtor,  and  the  promise  is 
made  upon  that  consideration  alone,  such  promise  is  within  the  statute  ;  and 
fourthly,  the  agreement  in  such  case  must  not  only  be  in  writing,  and  signed, 
but  the  consideration  for  the  promise  must  also  be  stated  in  the  agreement.  I 
will  now  consider  them  in  their  order. 

1.  Where  the  Party  promising  is  in  any  respect  liable  to  the 
original  Debt,  or  Duty,  either  alone,  or  jointly  avith  others.] — 
Upon  thispointthe  folloAving  distinction  has  been  taken,  viz.  if  two  come  to  a  dra- 
per, and  one  of  them  says,  "Let  this  person  have  so  much  cloth,  and  I'll 
pay  you  for  it ;"  there  the  sale  is  to  him  only  Avho  gives  the  order,  though  the 
delivery  be  to  another  ;  and  he  alone  is  liable.  But  if  a  contract  be  made 
with  A.,  and  the  vendor  scruples  to  let  the  goods  go  without  the  money  ;  and  B. 
comes  to  him,  and  desires  him  to  let  A.  have  the  goods,  and  undertakes  that  A. 
shall  pay  him  ;  in  this  case  A.  is  the  original  debtor,  and  B.  is  only  ansAvera- 
ble  upon  his  promise  in  *case  A.  makes  default  in  payment.  (I)  And  this  distinc- 
tion will  be  found  throughout  all  the  cases  on  the  subject.  Thus,  in  the  case  of 
Stephens  v.  Squire, (m)  which  Avas  an  action  of  assumpsit  to  pay  10/.  and  costs. 
The  facts  Avere  these  :  an  action  had  been  brought  against  the  defendant  and  two 
others  ;  and  the  cause  Avas  carried  down  to  be  tried  at  the  assizes ;  but  the  defen- 


(0  Per  Curiam,  6  Mod.  219.  12  Mod.  250.         (m)  5  Mod.  205.  Comb.  362.  S.  C. 
*196 


Chap.  2.]     For  the  Debt  or  Default  of  Mother.  196 

dant  promised,  in  consideration  that  the  plaintifl'  would  not  prosecute  the  action, 
that  he  would  pay  10/.  and  costs  of  suit.  The  question  was  whether  this  was 
a  void  promise  by  the  statute  of  frauds,  it  not  being  in  writing  ?  The  Court  de- 
termined, that  this  could  not  be  said  to  be  a  promise  for  another  person,  but  for 
the  defendant's  own  debt  ;  and  therefore  not  within  the  statute. 

So,  in  the  case  of  Read  v.  Nash,(?i)  the  facts  were  these  :  Tuack,  the  plain- 
tiff's testator,  brought  an  action  of  assault  and  battery  against  one  Johnson.  The 
cause  being  at  issue,  the  record  entered,  and  just  coming  on  to  be  tried,  the 
defendant  Nash  being  then  present  in  court,  in  consideration  that  Tuack  would 
not  proceed  to  trial,  but  would  withdraw  his  record,  promised  to  pay  Tuack  50/. 
and  the  costs  in  that  cause,  to  be  taxed  till  the  time  of  withdrawing  the  record, 
in  which  taxation  all  such  sums  of  money  were  to  be  allowed  as  Tuack  had 
paid  and  was  liable  to  pay  to  his  attorney  and  witnesses  who  attended  the  trial. 
Tuack,  relying  upon  this  promise,  did  withdraw  his  record,  and  no  further  pro- 
ceeding was  had  in  that  cause.  Tuack  being  dead,  Read,  his  executor,  brought 
an  action  upon  this  special  promise,  which  was  merely  verbal,  and  not  reduced 
into  writing.  The  case  was  twice  argued  at  the  bar  ;  and,  after  time  taken  by 
the  Court  to  consider  it,  Lee  Ch.  J.  delivered  the  opinion  of  the  Court  as  fol- 
lows :  "  The  single  question  is,  whether  this  promise  which  is  confessed  by  the 
demurrer  not  to  have  been  in  writing,  is  within  the  statute  of  frauds  and  per- 
juries ?  that  is  to  say,  whether  it  be  a  promise  for  the  debt,  default,  or  miscar- 
riage of  another  person  ?  And  we  are  all  of  opinion  that  it  is  not,  but  that  it  is 
an  original  promise,  sufficient  to  found  an  assumpsit  upon  against  Nash,  and  is 
a  lien  upon  Nash,  and  upon  him  only.  Johnson  was  not  a  debtor  ;  the  cause 
was  not  tried  ;  he  did  not  appear  to  be  guilty  of  any  default  or  miscarriage  ; 
there  might  have  been  a  verdict  for  him  if  the  cause  had  been  tried,  for  any 
thing  we  can  tell ;  he  never  was  liable  to  the  particular  debt,  damages,  or  costs. 
The  true  difference  is  between  an  original  promise,  and  a  collateral  promise  ; 
the  first  is  out  of  the  statute,  the  latter  is  not,  when  it  is  to  pay  the  debt  of  an- 
other which  was  already  contracted." 

2.  Of  the  Consideration  moving  to  the  party  promising.] — If  the 
consideration,  upon  which  the  promise  is  made,  be  moving  to  the  party  prom- 
ising, in  that  case  the  promise  is  not  within  the  statute  :  *Thus,  in  the  case  of 
Williams  v.  Leper,{o)  the  facts  were  as  follow  :  Taylor,  a  tenant  of  the  plain- 
tiff, being  in  arrear  for  rent,  to  the  amount  of  45/.  for  three-quarters  of  a  year, 
and  insolvent,  conveyed  all  his  effects  for  the  benefit  of  his  creditors.  They 
employed  Leper,  the  defendant,  as  a  broker,  to  sell  the  effects,  who  accordingly 
advertised  a  sale.  On  the  morning  advertised  for  the  sale,  Williams,  the  land- 
lord, came  to  distrain  the  goods  in  the  house.  Leper  having  notice  of  the 
plaintiff's  intention  to  distrain  them,  promised  to  pay  the  arrear  of  rent,  if  he 
would  desist  from  distrairiing.  Williams,  on  the  faith  of  this  promise,  accordingly 
desisted.     At  the  trial,  a  verdict  was  found  for  the  plaintifl  for  45/.  ;  but  a  ques- 

(n)    1  Wils.  305.  Castling  v.  Aubert,  post.  199.  where  this  case 

(o)  3  Bur.   1336.     2  Wils.  30S.  S.  C.  Vide    is  recognised. 


« 


197 


197  Of  a  Guarantee  or  Promise  to  be  J?iswerable[Vixrt  II. 

tion  was  reserved  for  the  opinion  of  the  Court,  whether  or  not  this  was  such  a 
special  promise  for  the  debt  of  another  as  was  within  the  statute  of  frauds  ?  And 
after  argument,  Lord  Mansfield  Ch.  J.  said,  "  The  case  has  nothing  to  do  with 
the  statute  of  frauds.     The  res  gesla  would  entitle  the  plaintiff  to  his  action 
against   the    defendant.     The    landlord    had    a  legal    pledge ;    he  entered    to 
distrain ;   he   had   the  pledge  in    his  custody.     The   defendant    agreed,  '  that 
the  goods  should  be  sold,  and  the  plaintiff  paid  in  the  first  place.'     The  goods 
were  the  fund  :  the  question  was  not  between  Taylor  and  the  plaintiff.     The 
plaintiff  had  a  lien  on  the  goods.     Leper  was  a  trustee  for  all  the  creditors,  and 
was  obliged  to  pay  the  landlord,  who  had  the  prior  lien  :  this  has  nothing  to  do 
with  the  statute  of  frauds."      Wilmot  and  Yates,  Justices,  were  of  opinion,  that 
this  was  an  original  promise ;  and  Mr.  Just.  Aston  said,  "  He  looked  upon  the 
goods  to  be  the   debtor  ;  and  that   Leper   was  not  bound  to  pay  the  landlord 
more  than  the   goods   sold  for,  in  case  they  had  not  sold  for  45/.     The  goods 
were  a  fund  between  both  ;  and  on  that  foot  he  concurred. "(107) 

The  principle  upon  which  this  case  was  determined  was  recognised  in 
Houlditch  v.  Milne,  (p)  It  was  an  action  of  assumpsit  for  the  repair  of  car- 
riages ;  and  the  facts  in  support  of  it  were,  that  certain  carriages  which  belong- 
ed to  Mr.  Copcy  had  been  sent  by  the  defendant  to  the  plaintiff's  to  be  repair- 
ed, but  the  orders  concerning  them  were  given  by  the  defendant.  One  of  the 
carriages  had  been  brought  by  Mr.  Copey  himself,  and  paid  for  by  him  ;  and 
the  bill,  which  was  the  object  of  the  action,  contained  a  charge  for  repairs  done 
to  this  carriage,  and  was  made  out  in  the  name  of  Copey.  When  the  carriages 
were  repaired,  the  defendant  sent  an  order  to  pack  them  up,  and  send  them  on 
board  ship ;  the  plaintiff  upon  this  sent  to  him  to  know  who  was  to  pay  for 


(p)  3  Esp.  Rep.  86. 


(107)  A  debtor  imprisoned  on  original  process,  placed  in  the  hands  of  B.  property  suffi- 
cient to  indemnify  hail ;  whereupon,  B.  solicited  C.  to  become  bail  for  the  debtor,  and  prom- 
ised by  parol,  to  save  him  harmless  ;  this  was  held  to  be  an  original  and  not  a  collateral 
undertaking,  and  so,  not  within  the  statute  of  frauds.  Perky  v.  Spring,  12  Mass.  Rep. 
297.  So,  where  A.,  a  member  of  a  manufacturing  company,  in  consideration  that  B.  the 
holder  of  a  promissory  note  against  the  company,  would  deposit  the  note  with  a  third  per- 
son, until  A.  could  take  up  another  note  made  by  B.  to  C,  and  with  the  proceeds  thereof, 
pay  the  first  mentioned  note,  promised  B.  to  indemnify  him  against  the  payment  of  his  note 
toC.  ;  it  was  held,  that  such  promise  was  not  within  the  statut.  Colt  v.  Root,  17  Mass. 
Rep.  229.  And  so,  where  a  promise  to  pay  the  debt  of  a  third  person  arises  out  of  some 
new  consideration  of  benefit  to  the  promisor,  injury  or  inconvenience  to  the  promisee,  moving 
from  the  promisee  or  original  debtor,  such  promise  is  not  within  the  statute  of  frauds  ;  though 
the  original  debt  still  subsist,  and  remain  wholly  unaffected  by  the  agreement :  Thus,  where 
M.  was  indebted  to  F.,  and  C,  in  consideration  that  M.  would  deliver  to  him  (C.)  a  quantity 
of  hay  of  the  value  of  the  debt,  promised  by  parol,  to  pay  the  debt  due  from  M.  to  F.  Cleve- 
land v.  Farley,  9  Cowen,  639. 

And  so,  where  the  defendant,  who  had  received  goods  for  the  purpose  of  paying  the  debts 
of  A.,  promised  B.,  a  creditor  of  A.,  and  who  was  about  to  attach  the  goods  to  secure  the 
payment  of  his  debt,  that  if  he  would  wait  until  fall,  he  would  pay  the  debt ;  it  was  held, 
that  the  promise  was  an  original  undertaking,  and  not  within  the  statute  of  trauds.  Madden 
v.  MOray,  1  M'Cord,  486. "  See  Skelton  v.  Brewster,  8  J.  R.  293.  2d  edit.  So  also,  where 
the  plaintiff" attached  a  horse,  the  property  of  his  absent  debtor,  in  the  possession  of  the 
defendant,  who  promised,  that  if  the  plaintiff' would  release  the  horse,  he  would  pay  the  debt ; 
it  was  held,  that  this  was  a  valid  promise,  and  not  within  the  statute  of  frauds,  .'hikinson 
v.  Barfield,  1  M'Cord,  575.  See  Slingerlandv.  Morse,  7  J.  R.  463.  and  notes  («)  &.  (b).  464. 


Chap.  2.]     For  the  Debt  or  Default  of  Another-  197 

them  :  the  defendant  said  he  had  sent  them,  and  he  would  pay  for  them.  The 
carriages  were  afterwards  packed  up  and  sent  on  board  ship,  and  the  bill  was 
made  out  and  delivered  to  the  defendant ;  he  desired  time  *to  look  over  it ;  and 
when  the  plaintiff's  clerk  called  a  second  time,  he  said  the  charges  appeared 
very  high  :  but  desired  the  clerk  to  call  in  a  few  days,  and  he  would  settle  it- 
Not  having  done  so,  the  plaintiff's  attorney  waited  upon  him,  when  the  defen- 
dant said,  that  he  had  been  told  that  the  bill  was  a  most  exorbitant  one,  and  a 
fit  subject  to  refer.  However,  he  said,  he  had  money  to  pay  it,  though  he  did 
not  say,  whether  it  was  his  own  or  Copey's.  Upon  these  facts  it  was  contend- 
ed, on  behalf  of  the  defendant,  that  this  case  was  within  the  statute  of  frauds. 
But  Lord  Eldon  Ch.  J.,  before  whom  the  cause  was  tried,  said,  "  If  a  person 
obtained  possession  of  a  tenant's  goods  on  which  the  landlord  had  a  right  to 
distrain  for  rent,  and  he  promised  to  pay  the  rent,  though  it  was  clearly  the  debt 
of  another,  yet  a  note  in  writing  was  not  necessary  ;  that  such. a  case  appear- 
ed to  apply  precisely  to  the  one  before  him.  The  plaintiff  had  to  a  certain  ex- 
tent alien  upon  the  carriages,  which  he  parted  with  on  the  defendant's  promise 
to  pay.  His  lordship  therefore  was  of  opinion,  that  that  circumstance  took  the 
case  out  of  the  statute,  and  consequently  that  the  defendant  was  liable  for  the 
amount  of  the  bill. 

So,  in  the  case  of  Castling  v.  Aubert,(q)  where  the  following  case  was  stat- 
ed for  the  opinion  of  the  Court  of  King's  Bench  :  The  plaintiff  was  employed 
by  one  E.  P.  Grayson  as  his  general  agent ;  and,  as  an  insurance  broker,  had 
effected  for  his  use  certain  policies  of  assurance  mentioned  in  the  declaration, 
of  the  value  of  3000/.  ;  that  the  plaintiff  was  under  acceptances  for  Grayson, 
for  bills  drawn  by  Grayson  for  his  own  accommodation  ;  and  that  the  plaintiff 
had  a  lien  on  the  said  policies  to  indemnify  himself  against  his  said  acceptances. 
That  a  loss  having  happened  on  the  policies  of  insurance,  which  the  underwrit- 
ers had  agreed  to  pay,  but  which  Grayson  could  not  receive  without 
having  the  policies  to  produce,  the  plaintiff  was  applied  to,  to  give  them 
up  for  that  purpose  to  the  defendant,  into  whose  hands  Grayson  had  at  that 
time  transferred  the  management  of  his  insurance  concerns.  That  some 
of  the  plaintiff's  said  acceptances  for  the  use  of  Grayson  being  then  outstand- 
ing and  unpaid,  and  particularly  the  bill  for  181/.  Is.  mentioned  in  the  declara- 
tion then  in  the  hands  of  one  Calor,  upon  which  writs  had  been  sued  out  (though 
not  then  executed)  against  Grayson  as  the  drawer,  and  the  plaintiff  as  accep- 
tor ;  the  plaintiff  refused  to  deliver  up  the  policies  of  assurance,  they  being  the 
only  securities  he  had  against  his  said  acceptances,  without  an  indemnity  ;  and 
that  thereupon  a  meeting  was  held  between  the  plaintiff,  and  defendant,  and 
Grayson,  at  which  it  was  verbally  agreed  between  the  parties,  that  the  defen- 
dant should  pay  into  the  hands  of  a  banker  712/.  13s.  6d.,  to  answer  in  part 
certain  other  acceptances  of  the  plaintiff's,  exclusive  of  the  bill  for  181/.  Is. 
*and  that  the  plaintiff  should  provide  241/.  14s.  6d.  towards  paying  one  of  his 


{q)  2  East  Rep.  325. 

*198  *199 


199  Of  a  Guarantee  or  Promise  to  be  Answerable  [Part  II. 

acceptances  for  350/.  ;  and  that  the  defendant  should  pay  the  bill  of  181Z.  "Is. 
and  the  costs  of  the  action  which  had  been  brought  thereon  against  Grayson, 
amounting  together  to  202/.  ;  and  that  thereupon  the  said  policies  should  be 
delivered  up  to  the  defendant.  That  in  pursuance  of  this  agreement,  the  de- 
fendant paid  into  the  banker's  hands  712/.  13s.  6d.,  and  the  plaintiff  delivered 
up  the  policies  to  the  defendant.  That  the  defendant  received  from  the  under- 
writers the  amount  of  other  subscriptions  on  the  policies  so  delivered  up  to  him 
by  the  plaintiff.  That  the  defendant  was  afterwards  called  upon  by  the  attor- 
ney of  Cator  to  pay  the  said  202/.  for  the  debt  and  costs  on  the  bill  in  Cator's 
hands,  but  refused  to  do  so  ;  nor  had  he  paid  it  at  the  time  this  action  was  com- 
menced ;  and  that  in  consequence  of  such  refusal  the  plaintiff  was  arrested  at 
the  suit  of  Color,  as  acceptor  of  the  said  bill  of  exchange,  and  sustained  dama- 
ges thereby  to  the  amount  found  by  the  jury,  viz.  25/.  The  question  for  the 
opinion  of  the  Court  was,  whether  the  promise  of  the  defendant  to  pay  the  said 
202/.  due  from  Grayson  for  the  said  debt  and  costs,  on  having  the  said  policies 
of  insurance  delivered  to  him,  was  void  under  the  statute  of  frauds  ;  or  whether 
he  were  liable  by  reason  of  the  plaintiff's  parting  with  the  possession  of  those 
policies  upon  which  the  plaintiff  had  a  lien,  and  which  were  so  deposited  with 
the  defendant  1  The  Court  were  of  opinion,  that  this  was  not  a  promise  for  the 
debt  or  default  of  another  within  the  statute  of  frauds,  but  an  original  undertak- 
ing. And  Lord  Ellenborough  Ch.  J.,  said,  "  I  am  clearly  of  opinion,  that  this 
is  neither  an  undertaking  for  the  debt,  default  or  miscarriage  of  another  within 
the  statute.  It  could  not  be  for  the  debt,  but  rather  for  the  credit  of  another ; 
for  when  the  promise  was  made,  no  debt  was  incurred  from  Grayson  Jo  the 
plaintiff;  therefore,  if  at  all  within  the  statute,  it  must  be  for  the  default  or  mis- 
carriage of  another.  It  is  quite  beside  the  mischief  provided  against  by  the 
statute ;  which  was,  that  persons  should  not,  by  their  own  unvouched  un- 
dertaking, without  writing,  charge  themselves  for  the  debt,  default,  or  mis- 
carriage of  another.  In  the  case  of  a  bill  of  exchange  for  which  sev- 
eral persons  are  liable,  if  it  be  agreed  to  be  taken  up  and  paid  by  one,  even- 
tually others  may  be  discharged ;  and  the  same  objection  might  be  made  there  : 
but  the  moving  consideration  is  the  discharge  of  the  party  himself,  and  not  of 
the  rest,  though  that  also  ensues.  I  agree  with  the  decision  in  Williams  v. 
Lcper,(r)  to  the  full  extent  of  it :  I  agree  with  those  of  the  judges  who  thought 
the  case  not  within  the  statute  of  frauds  at  all. 

So,  in  the  case  of  Anstey  v.  Harden,  (s)  which  was  an  action  of  assumpsit  ; 
and  upon  the  trial,  it  appeared  in  evidence,  that  the  defendant  *being  in  dis- 
tressed circumstances,  the  plaintiff  and  three  other  creditors  of  the  defendant 
mot,  and  finding  that  he  could  only  pay  7s.  6d.  in  the  pound,  they  came  to  an 
agreement  to  accept  from  one  T.  Weston,  the  defendant's  father-in-law,  10s. 
in  the  pound  in  satisfaction  of  the  debts  due  to  them  from  the  defendant,  and  to 
assign  those  debts  to  the  said  T.    Weston  ;  and  an  agreement  was   accordingly 


(>•)  Ante,  197.  (s)  1  New  Rep.  C.  B.  124. 

*200 


Chap.  2]       For  the  Debt  or  Default  of  Another.  200 

prepared  for  that  purpose. — The  three  other  creditors  signed  this  agreement, 
and  received  their  respective  sums  of  money,  to  the  amount  of  \0s.  in  the  pound 
from  T.  Weston,  and  the  plaintiff  at  one  time  authorised  Greenwood  (one  of 
the  three  creditors  who  signed)  to  sign  for  him  when  he  signed  for  himself ;  but 
Greenwood  having  omitted  so  to  do,  the  plaintiff  revoked  his  authority,  and  re- 
fused to  execute  the  agreement,  or  accept  the  JO.?,  in  the  pound  on  his  debt. 
On  behalf  of  the  plaintiff  it  was  objected,  that  Weston's  undertaking  to  pay  10s. 
in  the  pound  in  discharge  of  the  defendant's  debt  was  void  by  the  statute  of 
frauds,  no  agreement  by  which  Weston  could  be  charged  having  been  signed 
by  him,  and  therefore  the  plaintiff's  undertaking  to  accept  10s.  in  the  pound 
was  nudum  pactum.  But  the  Chief  Justice  ruled  that  the  undertaking  of  Wes- 
ton was  not  within  the  statute  of  frauds.  And  the  Court  of  Common  Pleas  af- 
terwards, upon  a  rule  to  shew  cause  why  there  should  not  be  a  new  trial,  con- 
firmed his  lordship's  opinion,  and  determined,  that  this  agreement  was  not  with- 
in the  statute  ;  it  not  being  a  collateral  promise  to  pay  the  debt  of  another,  but 
an  original  contract  to  purchase  the  debts. 

3.  Of  a  Promise  to  pay  the  Debt  of  a  Third  Person  in  conside- 
ration of  forbearance  to  sue  the  Debtor,  &c] — It  is  now  settled,  that 
a  mere  promise  to  pay  the  debt  of  a  third  person  in  consideration  of  forbear- 
ance only,  is  within  the  statute,  and  such  promise  must  be  in  writing.  (108) 
This  point  was  raised  in  the  case  of  Fish  v.  Hutchinson,  (t)  which  was  an  ac- 
tion of  assiunpsit ;  the  plaintiff  declared  that  whereas  one  Vickars  was  indebt- 
ed to  him  in  a  certain  sum  of  money,  and  had  commenced  an  action  for  the 
same  ;  that  the  defendant  in  consideration  that  the  plaintiff  would  stay  his  ac- 
tion against  Vickars  promised  to  pay  plaintiff  the  money  owing  to  him  by  Vick- 
ars. It  was  objected,  that  this  promise  being  by  parol  was  within  the  statute. 
The  counsel  for  the  plaintiff  insisted  that  this  was  an  original  contract  between 
the  plaintiff  and  defendant,  and  therefore  not  within  the  statute  ;  and  cited  Read 
v.  Nash(u)  as  in  point.  But  the  Court  said,  "  This  case  was  very  clearly 
within  the  statute  ;  for  here  is  a  debt  of  another  person  still  subsisting,  and  a 
promise  to  pay  it :  and  it  is  not  like  the  case  of  Read  v.  Nash,  for  that  was  an 
action  of  assault  and  battery  brought  by  the  plaintiff's  testator  against  one  John- 
son ;  the  cause  was  at  issue,  the  record  of  nisi  prius  entered,  and  just  coming 
on  to  be  tried,  when  *the  defendant  Nash,  being  present  in  court,  in  considera- 
tion that  plaintiff's  testator  would  not  proceed  to  try  his  cause,  but  would  with- 
draw his  record,  promised  to  pay  him  501.  and  costs  to  be  taxed  in  that  suit ; 
so  in  that  case  there  was  no  debt  of  another,  it  being  an  action  of  battery,  and 
it  could  not  be  known  before  trial  whether  the  plaintiff  would  recover  any  dam- 

(0  2Wils.84.     Stra.  873.  S.  P.  (u)  Ante,  J  96. 


(108)  See  Tileston  v.  Jfettlcton,  6  Pick.  509.  A  parol  promise  by  A.  to  B.,  that  if  he 
would  discontinue  an  attachment  against  C,  he  (A.)  would  pay  to  B.  the  debt,  is  within 
the  statute  of  frauds.     Boyce  v.  Owens,  2  M'Cord,  208. 

*201 


201     Of  a  Guarantee  or  Promise  to  be  Answerable  [Part  II. 

ages  or  not ;  but  in  the  present  case  here  is  a  debt  of  another  still  subsisting, 
and  a  promise  to  pay  it." 

So,  a  promise  by  the  indorser  of  a  dishonoured  note,   to  indemnify  the  hold- 
er, if  he  will  proceed  to  enforce  the  payment  against  the  other  parties  thereon, 
must  be  in  writing,  otherwise  it  is  void.     Thus,  in  the  case  of  Winckworth  v. 
Mills, (y)  which  was  an  action  of  assumpsit.     The  plaintiff  was  indorsee  of  a 
promissory-note  made  by  one  Sharp  in  favour   of  Taylor    and  Son,  for    60/., 
payable  three  months  after  date,  and  indorsed  by  them  to  the  defendant,  and  by 
him  indorsed  to  the  plaintiff.     When    the    note  became  due,  it  was  dishonour- 
ed by  the  maker,  upon  which  the  defendant,  having  notice  thereof,  came  to  the 
plaintiff  and  promised  him  that  if  he  would  endeavour  to  recover  the  amount  of 
it  from  the  maker,  or  Taylor  and   Son,  that  he  would  indemnify  him.     Sharp 
was  insolvent  ;  and    the  plaintiff  thereupon  sued  Taylor  and  Son  to  judgment, 
but  could  not  obtain  from  them  more  than  307.,  and  therefore  brought  his  action 
against  the  defendant  for  the  remainder  of  the  note,  and  also  the  costs  and  ex- 
pences.     Lord  Kenyon  Ch.   J.,  before   whom  the  cause  was   tried,  enquired  if 
there  had  been  any  note  in  writing  of  the  promise  to  indemnify ;  the    counsel 
for  the  plaintiff  answered  in  the  negative  ;  but  contended  that  it  was  not  necessa- 
ry, as  the  defendant  was  himself  a  party  to  the  note,  and  to  be  benefited  by  the 
proceedings  against  Taylor  and  Son.     His   Lordship,  however,  ruled,  that  this 
was  a  promise  for  the  debt  and  default    of  another,  and   not    being  in  writing, 
was  void  under  the  statute  of  frauds  :  and  the    plaintiff  could  only  recover  the 
remainder  of  the  sum  due  upon  the  note,  without  the  costs  and   expences  of 
the  action  against  Taylor  and  Son. 

So,  a  parol  promise  to  pay  the  debt    of  another,    and  also  to    do   some   other 
act,  is  void  by  the- statute,  the  contract  being  entire.     This    was  settled    in  the 
case  of  Charter  v.  Beckett,  (w)  which  was  an  action  of  assumpsit  on  a  special 
agreement,  and  for  money  paid,  tried   before  Lord  Kenyon.     At   the  trial,    the 
plaintiff's  counsel  stated,  that  the  facts  of  the  case  were  these  :  that  the  plain- 
tiff, who  had  struck  a  docket  against  /.  Harris,,    was  induced  not    to  prosecute 
the  commission  of  bankruptcy,  but  to  sue   him  at   law  for  the  recovery   of  his 
debt,  and  having  sued  out  a  writ  against  him,  some  of  Harris's  creditors  were 
anxious  to  take  a  composition   for   their   debts,    provided    all    of  them    would 
agree  to  it ;  and  to  effect  this  scheme,  the   plaintiff  called   several   meetings  of 
Harris's  creditors,  at  the  *last  of  which  a  composition  of  10s.  in  the  pound  was 
proposed,  which  all  the  creditors,  except  the   plaintiff,  consented   to  take :  but 
as  the  plaintiff  had  been  put  to   great   expences  in  striking  the  docket   against 
Harris,  suing  out  a   writ,  and    calling  the    creditors    together,    he   would  not 
agree  to  take  that  composition  unless  those  expences  were  also  paid,  in  conse- 
quence of  which  the  defendant  promised  to  pay  those  expences,  and  to  accept 
bills  drawn  by    the  plaintiff  on  him   to  the  amount  of  the    composition.     The 
plaintiff  accordingly  drew  bills  on  the  defendant  to  that  amount,  which  the  lat- 

(t>)  2  Esp.  Rep.   484.  (u>)  7    Term  Rep.  201.    See     also    Coke 

v.  Tombs,  Anstr.  420.  Lea  v.  Barber,  lb.  425. 

*2oa 


Chap.  2  J     F  or  the  Debt  or  Default  of  Another  202 

ter  accepted  and  paid:  but  the  defendant  refusing  to  pay  the  plaintiff's  expen- 
ces,  amounting  to  20£.  13s.  the  plaintiff  paid  them  to  the  attorney,  and  brought 
this  action  to  recover  the  same  from  the  defendant  on  his  undertaking.  But 
this  undertaking  not  being  in  writing,  Lord  Kcnyon  was  of  opinion  that  the 
case  came  within  the  statute  of  frauds,  and  nonsuited  the  plaintiff,  refer rin<r  to 
the  case  of  Rnnd  v.  Nash.(a)  And  upon  a  rule  obtained  for  setting  aside  the 
nonsuit,  the  Court,  after  argument,  were  of  opinion  that  the  case  was  within 
the  statute,  and  discharged  the  rule. 

Upon  the  latter  branch  of  the  fourth  section  of  this  statute,  as  to  the  signa- 
ture of  the  party,  or  of  some  other  person  thereunto  by  him  lawfully  authorised, 
it  is  now  settled,  that  such  agent  need  not  be  authorised  in  writing  ;  and  the 
power  given  to  an  agent,  to  sign  a  guarantee  may  be  established  by  general 
proof  of  his  having  signed  former  guarantees  which  his  principal  has  paid.  (109) 
Thus,  in  the  case  of  Watkins  v.  Vmce(b),  which  was  an  action  upon  a  guaran- 
tee, and  at  the  trial  before  Lord  Elhnbcrovgh  Ch.  J.  it  was  proved,  that  the 
son  of  the  defendant,  a  lad  of  about  16  years  of  age,  had  signed,  for  his  father 
.  guarantees  in  three  or  four  instances,  and  to  have  accepted  bills  for  him  :  and 
upon  such  evidence  his  Lordship  held,  that  he  was  a  sufficient  agent  to  sign  a 
memorandum  of  guarantee. 

4.  The  Promise  must  not  only  be  made  upon  a  good  Consideration, 
but  such  Consideration  must  be    set  forth  in   the  agreement.]  (110) 

(a)  Ante,  196.  (6)  2  Stark.  Rep.  368. 

(109)  Where  the  defendant  undertook  to  guarantee  the  payment  of  certain  notes,  and  for 
this  purpose,  wrote  his  name  in  blank  on  the  back  of  them,  and  authorized  a  special  agent 
to  fill  up  the  indorsements  according  to  the  agreement  of  the  parties  ;  it  was  held  that  such 
authority  might  be  proved  by  parol.     Ulen  v.  Kittredge,  7  Mass.  Hep.  233. 

(110)  The  English  rule,  which  requires,  that  in  an  agreement  to  answer  for  the  debt,  de- 
fault, or  miscarriages  of  another  person,  the  consideration  as  well  as  the  promise  itself,  must 
be  in  writing,  has  not  been  adopted,  universally,  in  the  United  States.  But  in  the  following 
cases,  the  correctness  of  the" rule  was  admitted.  Sears  v.  Brink,  3  J.  R.  211.  Stephens,  Ram- 
say fy  Co.  v.  Winn,  2  Nott  &  M'Cord,  372.  note(o).  And  See  appx.  3  M'Cord,  590.  Livings- 
ton v.  Tremper,  4  J.  R.  416.  Violettv.  Palton,  5  Crunch,  142. 

And  in  pursuance  of  the  same  rule  of  construction,  it  has  been  adjudged,  that  if  a  guaran- 
ty be  made  simultaneously  with  the  original  contract,  the  consideration  expressed  in  the 
latter  will  sustain  the  former.  Leonard  v.  Vredenburgh,  8  J.  R.  23.  2d  edit.  Bailey  <$•  Bogert  v. 
Freeman,  11  J.  R.  221.  See  Hunt  v.  Adams,  5  Mass.  Rep.  358.  Carver  v.  Warren,  Id.  545.  Lent 
v.  Padelford,  10  Mass.  Rep.  230.  Mams  v.  Bean,  12  Mass.  Rep.  137.  Duval  v.  Trask,  Id.  154. 
And  so,  where  the  defendant  became  security  for  the  debt  of  a  third  person,  by  writing,  in 
which  no  consideration  was  recited,  an  order  drawn  by  the  original  debtor  upon  the  guaran- 
tor, on  the  faith  of  funds  in  his  hands  belonging  to  the  debtor,  in  favor  of  the  creditor,  of  the 
same  date  with  the  guaranty,  may  be  connected  with  the  guaranty,  to  show  a  consid- 
eration ;  and  thus  relieve  the  case  from  the  operation  of  the  statute.  Lecat  v.  TaveL  3 
M'Cord,  158. 

On  the  question  whether  the  consideration  for  an  agreement,  in  writing,  to  pay  the  debt 
of  another?  be  sufficiently  set  forth,  there  has  been  some  discussion  :  And  on  this  subject,  it 
has  been  determined,  that  the  words  "  for  value  received,"  are  sufficient  to  answer  the  re- 
quirements of  the  statute.  Aikinx.  Duren,  2  Nott  &.  M'Cord,  370.  Caldwell  v.  MKain,  Id. 
555.  See  Leonard  v.  Vredenburgh,  ut  supra.  So,  the  phrase,  "if  the  execution  can  be  delay- 
ed," was  held  to  be  a  sufficient  expression  of  the  consideration.   Lent  v.  Padelford,  ut  supra. 

But  the  most  important  decisions  on  this  subject,  are  those  by  which  the  authority  of  Wain 
v.  Warlters,  5  East,  10.,  has  been  overruled.     In  several  instances,  it  has  been  expressly  de- 

26 


202  Of  a  Guarantee  or  Promise  to  be  Answerable    [Part  II. 

Thus,  in  the  case  of  Wain  and  another  v.  Warlters(c),  the  plaintiffs  declared 
that,  at  the  time  of  making  the  promise  after  mentioned,  they  were  the 
indorsees  and  holders  of  a  bill  of  exchange,  dated  the  14th  of  February 
1803,  drawn  by  one  W.  Gore  upon  and  accepted  by  one  J.  Hall,  whereby 
Gore  requested  Hall,  seventy  days  after  date,  to  pay  to  his,  Gore's  order,  56/. 
16s.  6d.  ;  which  bill  of  exchange  Gore  had  before  then  indorsed  to  the  plaintiffs, 
and  which  sum  in  the  bill  mentioned,  was  at  the  time  of  making  the  promise 
by  the  defendant  due  and  unpaid.  And  thereupon  the  plaintiffs,  before  and 
at  the  time  of  making  the  said  promise  by  the  defendant,  had  retained  one 
A.  as  their  attorney,  to  sue  Gore  and  Hall  respectively  for  the  recovery  of 
*the  said  sum  then  due,  &c.  whereof  the  defendant,  at  the  time  of  his  prom- 
ise, &c.  had  notice.  And  thereupon,  on  the  30th  of  April  1803,  at,  &c.  in 
consideration  of  the  premises  and  that  the  plaintiffs,  at  the  instance  of  the 
defendants,  would  forbear  to  proceed  for  the  recovery  of  the  said  50/.  1G.?.  6d., 
he,  the  defendant,  undertook  and  promised  the  plaintiffs  to  pay  them  by  half- 
past  four  o'clock  on  that  day,  56/.  and  the  expences  which  had  then  been  incur' 
red  by  them  on  the  said  bill.  The  plaintiffs  then  averred  that  they  did,  within 
a  reasonable  time  after  the  defendant's  promise,  stay  all  proceedings  for  the  re- 
covery of  the  said  debt,  and  have  hitherto  forborne  to  proceed  for  the  recovery 
thereof;  and  that  the  expenees  by  them  incurred  on  the  said  bill  at  the  time  of 
making  the  promise  by  the  defendant,  and  in  respect  of  their  having  so  retained 
the  said  A.  and  on  account  of  his  having,  before  the  defendant's  said  promise, 
drawn  and  engrossed  certain  writs  called  special  capias,  against  Gore  and  Hall 
respectively  on  the  said  bill,  amounted  to  20/.  of  which  the  defendant  had  no- 
tice; yet  the  defendant  did  not  at  half-past  four  o'clock  on  that  day,  &c,  nor  at 
any  time  before  or  since,  pay  the  said  sum  of  56/.  and  the  said  expences  incur- 
red, &,c.  In  support  of  the  undertaking  laid  in  the  dec  laration,  the  plaintiffs,  at 
the  trial,  at  Guildhall,  produced  the  written  engagement  signed  by  the  defendant, 
which  was  in  these  words  :  "  Messrs.  Wain  and  Co.  I  will  engage  to  pay  you 
by  half-past  four  this  day,  fifty-six  pounds  and  expences  on  bill  that  amount  on 
Hall;  (signed)  Jnc.  Warltcrs,  (and  dated)  April  30th,  1803."  It  was  ob- 
jected, on  the  part  of  the  defendant,  that  though  the  promise,  which  was  to  pay 
the  debt  of  another,  icere  in  writing,  as  required  by  the  statute  of  frauds,  yet 
that  it  did  not  express  the  consideration  of  the  defendant's  promise,  which  was 


(c)  5  East  Rep.  10. 


tided,  that  a  promise  to  pay  the  debt  of  another,  in  writing,  and  signed  by  the  party  promis- 
ing, is  a  sufficient  compliance  with  the  statute  of  frauds,  without  any  recital,  in  the  writing, 
of  the  consideration  upon  which  the  promise  is  founded.  Packard  v.  Richardson,  17  Mass. 
Rep.  122.  Sage  v.  Wilcox,  6  Conn.  Rep.  81.  See  Lent  v.  Padelford,  ut  supra.  Becklyv. 
BeardsUy,  2  South.  270.  Day's  note  to  Wain  v.  Warltcrs,  5  East,  20.  Swift'3  Dig.  237. 
Appx.  3  M'Cord,  56'J,  589,  590.  In  South- Carolina,  the  authority  of  Wain  v.  Warlters,  and 
of  Stephens,  Ramsay  fy  Co.  v.  Winn,  ut  supra,  has  been  questioned.  Lecat  v.  Tavel,  3 
M'Cord,  158.  Bamstine  v.  Eggart,  Id.  162.  And  in  a  more  recent  case,  it  has  been  determin- 
ed, that  in  a  contract  f_>r  the  sale  ofland.it  is  unnecessary  that  the  consideration  for  the 
imsnt  sh  uld  be  expressed  in  writing,  but  that  it  may  be  collected  from  the  circumBtan- 
oes  of  the  transaction.     Tingley  v.  Cutler,  7Conn.  Rep.  291. 

*203 


Chap.  2J     For  the  Debt  or  Default  of  Another.  203 

also  required  by  the  statute  to  be  in  writing ;  and  that  this  omission  could  not 
be  supplied  by  parol  evidence,  (which  the  plaintiffs  proposed  to  call  in  order  to 
explain  the  occasion  and  consideration  of  giving  the  note) ;  and  that  for   want 
of  such  consideration  appearing  upon  the  face  of  the   written   memorandum  it 
6tood  simply  as  an  engagement  to  pay  the  debt  of  another  without  any  consid* 
eration,  and  was  therefore  nudum  pactum,  and  void.     Lord  Ellcnborouo-h   Ch. 
J.,    before   whom    the  cause  was   tried,  being  of  this  opinion,    nonsuited   the 
plaintiff.     And  upon  a  motion  for  a  rule  to   set  aside  this  nonsuit,  the  Court  de- 
termined that  the  consideration  ought  to  have  been  stated  in  the   agreement  ; 
and  therefore  discharged  the  rule.  His  Lordship  in  delivering  his  opinion  in  court 
said,  "  In  all    cases    where   by   long    habitual  construction  the    words    of  a 
6tatute    have   not    received    a    peculiar  interpretation,    such  as    they   will  al- 
low of,  I  am  always  inclined  to  give  to    them  their   natural    ordinary  significa- 
tion.    The  clause  in  question  in  the  statute  of  frauds  has  the  word    agreement 
(*«  unless  the  agreement  upon  which  the   action  is  brought,  or  some   memoran- 
dum or  note  thereof  shall  be  in   writing,"   &c.)  And  the    question  is,    whether 
#that  word  is  to  be  understood  in  the  loose  incorrect  sense  in  which  it  may  some- 
times be  used,  as  synonymous  to  promise,  or  undertaking,  or  in  its  more  prooer 
and  correct  sense,  as  signifying  a  mutual  contract  on  consideration  between  two 
or  more  parties?    The  latter  appears  to  me  to  be  the  legal  construction  of 
the  word,  to  which  we  are  bound  to  give  its  proper  effect ;  the  more  so  when 
it  is  considered    by  whom   that  statute  is  said   to  have  been  drawn,   by  Lord 
Hale,  one  of  the  greatest  judges  who  ever  sat  in    Westminster  Hall,  who  was 
as  competent  to  express  as  he  was  able  to  conceive  the  provisions  best  calculat- 
ed for  carrying  into  effect  the  purposes  of  that  law.     The  person  to  be  charged 
for   the  debt   of  another    is    to   be  charged,  in  the  form    of  the    proceeding 
against   him,  upon  his   special  promise ;  but  without   a  legal  consideration   to 
sustain  it,  that  promise  would  be  nudum  pactum  as  to  him.     The  statute  never 
meant  to  inforce  any  promise  which  was  before  invalid,  merely   because  it  was 
put  in  writing.     The  obligatory  part  is  indeed  the  promise,  which  will  account 
for  the  word  promise  being  used  in  the  first  part  of  the  clause,  but  still,  in  order 
to  charge  the  party  making  it,  the  statute  proceeds  to  require  that   the  agree- 
ment, by  which  must  be  understood  the  agreement  in  respect  of  which  the  promise 
was  made,   must   be  reduced   into  writing.     And,    indeed,   it  seems   necessary 
for  effectuating  the  object  of  the  statute  that  the  consideration  should  be  set  down 
in  writing   as  well  as   the   promise:   for  otherwise   the  consideration  might  be 
illegal,   or  the  promise   might  have    been   made  upon  a    condition    precedent, 
which  the  party  charged  may  not  afterwards  be  able  to  prove,  the    omission  of 
which  would  materially  vary  the  promise,  by  turning  that  into  an   absolute  pro- 
mise which  was  only  a  conditional  one  :  and  then  it  would  rest  altogether  on  the 
conscience  of  the  witness  to  assign  another  consideration  in  the  one  case,  or  to 
drop  the  condition  in  the  other  ;  and  thus  to  introduce  the  very  frauds  and  per- 
juries which  it  was  the  object  of  "the  act  to  exclude,  by  requiring  that  the  agree- 
ment  should  be  reduced  into  writing,  by  which  the  consideration,  as  well  as  the 
promise,  would  be   rendered  certain.     The  authorities    referred  to  by    Comyns 

♦"204 


204     Of  a  Guarantee  or  Promise  to  be  Answerable  [Part  II. 

all  show  that  the  word  agreement  is  not  satisfied  unless  there  be  a  consideration, 
which  consideration  forming  part  of  the  agreement  ought  therefore  to  have 
been  shown  ;  and  the  promise  is  not  binding  by  the  statute  unless  the  consider- 
ation, which  forms  part  of  the  agreement,  be  also  stated  in  writing.  Without 
this,  we  shall  leave  the  witness  whose  memory  or  conscience  is  to  be  refresh- 
ed to  supply  a  consideration  more  easy  of  proof,  or  more  capable  of  sustaining 
the  promise  declared  on.  Finding  therefore  the  word  agreement  in  the  statute, 
which  appears  to  be  most  apt  and  proper  to  express  that  which  the  policy 
of  the  law  seems  to  require,  and  finding  no  case  in  which  the  proper  meaning 
of  it  has  been  relaxed,  the  best  construction  which  we  can  make  of  the  clause 
is  to  give  its  proper  and  legal  meaning  to  every  word  of  it."' 

•This  decision  of  the  Court  of  King's  Bench  was  frequently  noticed  in  sub- 
sequent cases.(d)  as  to  the  construction  put  upon  the  fourth   clause  of  the  sta- 
tute of  frauds  ;  and  it   was  thought  by  some  very  eminent   and  learned  judges, 
that  that  decision  was  at  variance  with  former  determinations,   and  contrary  to 
the  generally  received  opinion  in  Westminster  Hall.    This  point,  however,  has 
again  been  recently  brought  before  the  same  Court,  in  the  case  of  Saunders  v. 
Wakefield, (e)  and,  after  much  argument,  in  which  several  of  the  authorities 
just  referred  to  were  cited,  the  same  judgment  was  given  as  in  Wain  6f  Wal- 
ters' case  :   and  it  should  be  observed,  that  the  learned  judges  who  formed  the 
court  when  this  last  decision  took  place,  were  all  different  from  those  who  had 
given  judgment  in  Wain  8$  Warlters''  case.     And  Mr.  Just.  Holroyd,  in  deliv- 
ering his  opinion  in  that  case,   says,  "  Whether  we  consider  the  general  object 
of  the  statute,  or  the  particular  object  of  the  fourth  clause,  it  seems  to  me  to  be 
necessary,  that  the  consideration  for  the  promise   should  be  stated  in  writing. 
The  consideration  is  the  very  ground  of  the   action,   and  without  it  the  action 
will  not  lie.     In  the  present  case,  that  which  is  reduced  into  writing  affords  of 
itself  no  ground  of  action.     The  general  object  of  the  statute  was,  to  take  away 
the  temptation  to   commit   fraud  by  perjury  in  important  matters,  by  making  it 
requisite  in  such  cases  for  the   parties  to  reduce  the  circumstances  to  writing. 
The  particular  object  of  the  fourth  clause  was,   to   prevent  any   action  being 
brought  in  certain  cases,  unless  there  was  a  memorandum  in  writing.     The  ob- 
ject of  both  was,  that  the  ground  and  foundation  of  the  action  should  be  in  writ- 
ing, and  should  not  depend   on  parol   testimony.     Unless,   therefore,   what  is 
sufficient  to   maintain  the  action  be  in  writing,  no  action  can  be  supported.     If 
we  take  the   word  "  agreement,"  used  in   the  fourth  section  in  its  strict  sense, 
it  would  seem  to  imply,  that  the  whole  of  that  which  is  agreed  between  the  par- 
ties should  be  in  writing,  and  the  other  cases  mentioned  in  the  clause  support 
such  a  construction.     For  upon  an  agreement   upon  consideration  of  marriage, 
or  a  contract  for  the  sale  of  lands,  it  is  quite  clear,  that  the  consideration  must 


(d)  Vide   Ex  parte  Minet,  1-i   Ves.  190.         (e)  4  Barn.  &  Aid.  595.     And  see  3  Brod. 

Ex  parte  Gardom,   15  Vee.  2S6.     Morris  v.     &  Bing.    14,   211.     8  Taunt.   679.      1   Bing. 
5.'.,-r>/,  Holt  N.  P.  1  ."i  1.  Rep.  21 6. 

*205 


Chap.  2.]      For  the  Debt  or  Default  of  Another.  205 

be  stated  in  writing.  But  whether  we  construe  the  word  in  its  strict  sense  or 
not,  still,  inasmuch  as  without  a  consideration  there  can  be  no  ground  of  action, 
it  seems  to  me,  that,  upon  this  clause,  the  consideration  must  be  stated  in  writ- 
ing. In  the  present  case,  that  which  is  reduced  into  writing,  is  merely  an  en- 
gagement to  pay  the  bill.  Now,  unless  there  be  a  consideration  for  that,  no 
action  lies  upon  such  a  promise.  If  a  consideration  is  to  be  introduced,  it  may 
be  either  past  or  future,  and  must  be  proved  by  parol  evidence.  If  that  were 
allowed,  all  the  danger  *which  the  statute  of  frauds  was  intended  to  prevent, 
would  be  again  introduced.  I  am  therefore  of  .opinion,  that  there  must  be  judg- 
ment for  the  defendant." 

There  is  however  a  material  distinction  between  the  seventeenth  clause  of 
this  statute,  which  relates  to  the  sale  of  goods,  and  the  fourth  clause  relating 
to  the  payment  of  a  debt  of  a  third  person  :  and  this  distinction  was  settled  very 
recently  after  the  determination  of  Wain  v.  Warltcrs,  in  the  case  of  Egerlon 
v.  Maltheivs,(f)  which  was  an  action  on  the  case  against  the  defendants  for  not 
accepting  and  paying  for  certain  goods,  which  they  had  contracted  to  purchase 
by  the  following  memorandum  in  writing  :  "We  agree  to  give  Mr.  Egerton\9d. 
per  lb.  for  30  bales  of  Smyrna  cotton,  customary  allowance,  cash  3  per  cent,  as 
soon  as  our  certificate  is  complete,  Signed,  Matthews  Sad  Turnbull, and  dated  2d 
September,  1823."  The  Court,  on  referring  to  these  two  clauses  of  the  statute, 
decided  that  this  was  a  sufficient  memorandum  within  the  words  of  the  seven- 
teenth clause ;  and  Lord  Ellenborough  Ch.  J.  said,  "  The  words  of  this  clause 
were  satisfied  if  there  were  some  note  or  memorandum  in  writing  of  the  bargain, 
signed  by  the  parties,  to  be  charged  by  such  contract.  And  this  was  a  memo- 
randum of  the  bargain,  or  at  least  of  so  much  of  it  as  was  sufficient  to  bind  the 
parlies  to  be  charged  therewith,  and  whose  signatures  to  it  is  all  that  the  sta- 
tute requires."  And  Laurence  Just,  said,  "  The  case  of  Wain  v.  Warltcrs 
proceeded  on  tiiis,  that  in  order  to  charge  one  man  with  the  debt  of  another, 
the  agreement  must  be  in  writing  ;  which  word  agreement  we  considered  as  pro- 
perly including  the  consideration  moving  to,  as  well  as  the  promise  by  the  par- 
ty to  be  so  charged  ;  and  that  the  statute  meant  to  require  that  the  whole  agree- 
ment, including  both,  should  be  in  writing." 

So  in  the  case  of  Stadt  v.  Lilt,(g)  which  was  an  action  on  the  case  for  the 
breach  of  a  guarantee  in  not  paying  the  value  of  goods  delivered  by  the  plain- 
tiff to  one  Nichols.  The  defendant  gave  a  written  guarantee  signed  by  him  in 
this  form  :  "  I  guaranty  the  payment  of  any  goods  which  J.  Stadt  delivers  to  .7. 
Nichols."  It  was  objected  at  the  trial,  before  Lord  Ellenborough  Ch.  J.,  upon 
the  authority  of  the  case  Wain  v.  Warlters,  that  this  guarantee  was  void,  be- 
cause there  Mas  no  consideration  stated  for  the  promise.  But  his  Lord.ship 
was  of  opinion,  that  the  stipulated  delivery  of  the  goods  to  Nichols  was  a  con- 
sideration appearing   on  the   face  of  the   writing,    and  when  the   delivery  took 


(/)  8  East  Rep.  307.  See   also  Russell  v.   Mosely,  3  Brod.  ft  Bing. 

(g)  9  East  Rep.  348.    and    1  Cainpb.  242.     211. 

*206 


206  Of  a  Guarantee  or  Promise  to  be  Answerable  [Part  II. 

place,  the  consideration  attached  :  and  he  directed  the  jury  accordingly,  who 
found  a  verdict  for  the  plaintiff;  but  he  gave  leave  to  the  defendant  to  move 
to  enter  a  nonsuit  if  this  direction  were  wrong.  A  motion  for  this  purpose 
was  accordingly  made.  But  the  Court  were  satisfied  that  *the  direction  was 
right,  for  the  reason  before  given  by  his  Lordship,  and  discharged  the  rule. 

2.  OF  THE  CONSTRUCTION  OF  A  GUARANTEE,  AND  ITS  EXTENT  AND 
CONTINUANCE  :  AND  OF  ITS  DURATION  WHEN  GIVEN  TO  A  PART- 
NERSHIP  FIRM,  OR  TO  ONE  WHO  AFTERWARDS  TAKES  A  PART- 
NER. 

1.  Of  the  construction  of  a  guarantee,.] — The  same  rules  of  con- 
struction which  apply  to  contracts  and  promises  in  general,  will  equally  apply 
to  a  guarantee  ;  and,  like  other  instruments,  must  be  construed  according  to 
the  plain,  natural  import  of  its  terms :( 111)  though  it  has  been  said  (A),  that 
as  against  a  surety,  a  contract  cannot  be  carried  beyond  the  strict  letter  of 
it.(112)     And,  therefore,  where  a  party  writes  to  a  trader,  respecting  the  hon- 

Qi)  Per  Buller  Just.,  2   T.   R.    370.  and  see  2  Taunt.  206.     1  New  Rep.  41. 

(Ill)  In  thecase  of  Drummond  v.  Prestman,  12  Wheat.  515,  518.  Mr.  Justice  Johnson 
declared  it  to  be  a  rule  in  expounding  letters  of  credit  and  guaranty,  "  that  the  words  of  the 
guarantor  are  to  be  taken  as  strongly  against  him  as  the  sense  will  admit."  But,  with  refer- 
ence to  the  case  then  the  subject  of  discussion,  he  adds,  "it  is  not  necessary  to  test  this 
letter  by  any  canon  of  the  law  of  guaranty  more  rigid  than  the  first  and  most  general,  to 
wit.  that  no  party  shall  be  bound  beyond  the  extent  of  the  engagement  which  shall  appear 
from  the  expression  of  the  guaranty,  and  the  nature  of  the  transaction." — Words  of  doubt- 
ful import,  ought  not  to  receive  such  a  construction  as  to  make  the  party  using  them,  liable 
for  the  debt  of  another  person.  And  it  is  the  duty  of  the  individual  who  contracts  with  one 
man  on  the  credit  of  another,  to  require  an  explicit  and  plain  declaration  of  the  obligation 
which  he  is  about  to  assume,  and  not  to  trust  to  ambiguous  phrases  and  strained  construc- 
tions.    Russel  v.   Clark's  Exrs\  7  Cranch.  69,  70. 

A  guaranty  of  the  following  tenor, 

"Baltimore,  17th  ISovember,  1803. 

Capt.  Charles  Drummond, 

Dear  sir:  My  Son  William,  having  mentioned  to  me,  that  in  conse- 
quence of  your  esteem  and  friendship  for  him,  you  had  caused  and  placed  property  of  yours 
and  your  brother's  in  his  hands  for  sale  ;  and  that  it  is  probable,  from  time  to  time,  you  may 
have  considerable  transactions  together;  on  my  part,  I  think  proper  to  guarantee  to  you 
the  conduct  of  my  son,  and  shall  hold  myself  liable  ;  and  do  hold  myself  liable  for  the  faithful 
discharge  of  all  his  engagements  to  you,  both  now  and  in  future."  "George  Prestman.," 
was  held  to  extend  to  a  partnership  debt  incurred  by  William  Prestman  to  Charles  Drum- 
mond and  Richard,  his  brother,  it  being  proved,  that  the  transactions  to  which  the  letter 
related,   were  had   with  them  as  partners.     Drummond  v.  Prestman,  ut  supra. 

(112)  A  surety  cannot  be  bound  bevond  the  scope  of  his  engagement.  Thus,  where  A.  of 
Xew-York,  gave  'a  letter  of  credit  to  B.  directed  to  C.  in  Albany,  requesting  him  to  deliver 
goods  to  B.  on  the  best  terms,  to  a  certain  amount ;  C.  instead  of  delivering  the  goods  him- 
self, gave  B.  a  letter  to  D.  in  Geneva,  requesting  him  to  deliver  goods  to  B.  to  the  amount 
specified,  and  engaging  to  be  responsible  for  them  ;  and  D.  accordingly  delivered  the  goods 
to  B.  In  an  action  by  C.  asainst  A.  for  the  amount;  it  was  held,  that  the  engagement  of 
A.  to  C.  did  not  make  him  liable  for  goods  furnished  by  any  other  person.  Waslh  v.  Bailie, 
10  J.  R.  180.  But  where  a  letter  was  addressed  by  the  defendants,  as  follows:  "Mr.  James 
M'Pherson,  Dear  Sir,  We  will  become  your  security  for  one  hundred  and  thirty  barrels  of 
corn,  payable  in  twelve  months.  Alexandria,  28th  November,  1800.  Lawrason  ,$•  Smoot ;"  it 
was  held,  that  assumpsit  would  lie  against  the  defendants  in  behalf  of  any  person  who,  upon 
the  faith  of  the  letter,  shall  have  given  credit  to  James  M'Pherson,  for  the  corn.  Lawrason  v. 
Mason,  3  Cranch,  192.     See  further,  Grant  v.  Xaylor,  4  Cranch,  221.     Lanv.sse  v.  Barker,  3 

*207 


Chap.  2.]    For  the  Debt  or  Default  of  Another,  207 

our  and  probity  of  a  customer,  and  stating  that  he  has  no  objection  to  guaranty 
the  trader  against  loss  from  his  giving  him  credit ;  such  offer  does  not  of  itself 
amount  to  an  absolute   guarantee,  but  as  a  mere  overture,  unless  the  trader  an- 
swers it,  and  apprises  the  party   that  he  will  accept  it  as  sucb,  and  supply  the 
customer  with  the  goods  accordingly  ;(113)  more  particularly  if  the  trader  has 
a  guarantee   from  another  house  at  the  same   time.     This  was   determined  in 
the  case  of  ISTIver  v.  Richardson  {i),  which  was  an  action  of  assumpsit  upon 
a  promise  to  guaranty  the  plaintiffs  the  payment  of  the   rigging,  stores,  &c.  of 
a  ship  furnished  to  Anderson  and  Co.  of  Quebec,  to  the  amount  of  2091/.  lis. 
Id.     Prior  to  their  making  the   supply,   Anderson  and  Co.  had  applied  to  the 
plaintiffs,  but  they  declined  to  act  upon  Anderson  and  Co.'s  credit  alone ;  they 
were,  therefore,  referred  to  the  defendant,  who  wrote  to  them  the  following  pa- 
per, addressed  to  the  plaintiffs  :   "  Gentlemen,   As  I  understand  Messrs.  David 
Anderson  and  Co.    have  given  you    an  order  for  rigging,  &c,  which   will 
amount  to  about  four  thousand  pounds,  I  can   assure  you  from  what  I  know  of 
D.  A.'s  honour  and  probity,  you  will  be  perfectly  safe  in  crediting  him  to  that 
amount;  indeed,  I  have  no  objection  to  guaranty  you  against  any  loss  from  giv- 
ing them,  this  credit.     John  Richardson,  Liverpool,   March   12,   1811."     This 
paper  was  communicated  by  Anderson  to  the  plaintiffs,  who  were  not  satisfied, 
but  required,  in  addition,  the  security  of  another  person,  and  Anderson  applied 
to  Pagett  and  Co.,  who  gave  a  separate  guarantee,  which  the  plaintiffs  accept- 
ed.    On  the  13th  of  April  1811,  Anderson  and  Co.  wrote  from  London  to  the 
plaintiffs  in  Liverpool,  inclosing  the  paper  signed   by  the   defendant,   and  also 
that  signed  by  Pagett  and  Co.,  which  they    stated  to   be  a  letter   from   the  de- 
fendant, and  one  from  Pagett    and  Co.,  guarantying  the  payment  of  rigging 
and  sails,  &c.  and  requested  an  order  for  the  delivery  of  the  *goods  at  Quebec. 
The  plaintiffs  having  received  these  two  papers,  they  and  the  other  tradesmen 
drew  bills  of  exchange  for  the  respective  amounts  of  their  demands  on  Ander- 
son and  Co.,  dated  the  1st  of  April  1811,  payable  12  months  after  date,  which 
Anderson  accepted ;  and  the  necessary    orders  for  the  delivery   of  the   goods 
were  thereupon  given  by  the   plaintiffs  to  Anderson  and  Co.,    which  were  ac- 
cordingly complied  with.     None    of  these  facts  were  communicated  to  the   de- 
fendant, nor  had  he  any  knowledge  of  any   part  of  the  transactions   after  he 
had  signed  the  above   paper  till  applied  to  as  after  mentioned.     The  credit  for 
goods  of  this  description,  when  sold  in  Liverpool,  is  very  various  ;  for  cordage 
it  is  often  twelve  months,   and  for  the    other  articles  three  or  six  months.     In 


(i)   1  Maule  &  Scl.  557. 


Wheat.  148,  note(a).  And  where  a  person  gave  another  a  general  letter  of  credit,  engaging  to 
be  responsible  to  any  one  who  would  sell  goods  to  him,  on  credit,  and  if  any  one  sell  him 
goods  on  the  faith  of  such  letter,  the  guarantor  will  be  liable  to  the  vendor  as  upon  an  origi- 
nal undertaking,  collateral  to  the  promise  of  the  vendee,  as  security;  and  such  undertaking 
will  not  be  liable  to  any  contingency,  except  that  of  gross  negligence  in  collecting  the  debt  of 
the  vendee.     Duval  v.  Trask,  12  Mass.  Rep.  154. 

(113)  See  Ra^elye  v.  Bailey,  3  Conn.  Rep.  207.  Russel  v.  Clark's  Exrs.  7  Cranch,  69,  92. 
Pei  Marshall,  Ch.J. 

♦208 


203   Of  a  Guarantee  or  Promise  to  be  Answerable  [Part  If* 

January  1812,  before  the  bills  became  due,  Anderson  and  Co.  failed,  and  the 
bills  were  dishonoured,  and  notice  of  the  dishonor  was  given  to  the  defendant. 
The  plaintiffs  then  applied  to  the  defendant  to  make  good  to  them  the  amount, 
which  he  refused  ;  and  thereupon  the  present  action  was  brought.  The  Court 
were  of  opinion,  that  this  was  not  an  absolute  guarantee,  but  only  an  overture 
or  offer  to  guaranty.  And  Lord  Ellcnborough  Ch.  J.,  in  delivering  the  judg- 
ment of  the  Court  said,  "  The  question  is,  whether  the  paper  imports  to  be  a 
perfect  and  conclusive  guarantee,  or  only  to  a  proposition  tending  to  a  guaran- 
tee. We  do  not  know  on  what  kind  of  previous  application  the  defendant 
signed  it,  nor  is  there  any  subsequent  circumstance  stated  from  which  it  can 
be  collected.  The  paper  therefore  must  be  construed  according  to  the  plain 
natural  import  of  its  terms.  The  import  is,  that  the  party  signing  it,  under- 
stood that  Anderson  and  Co.  had  given  an  order  for  goods  to  about  4000/. ; 
that  this  order  remained  unexecuted  ;  and  then,  as  if  a  question  had  been  put 
to  the  defendant  respecting  the  honour  and  probity  of  Anderson  and  Co.,  the 
defendant  says,  "  I  can  assure  you,  from  what  I  know  of  Anderson,  you  will 
be  perfectly  safe  in  crediting  them  to  that  amount ;"  and  then  he  adds,  "  In- 
deed I  have  no  objection  to  guaranty  you  against  any  loss  from  giving  them 
this  credit ;"  which  words  import,  that  if  application  were  made  he  would 
guaranty ;  but  no  such  subsequent  application  was  made.  Indeed  it  appears 
that  a  guarantee  was  obtained  from  another  house.  A  considerable  period 
elapsed,  and  it  was  not  made  known  to  the  defendant  until  the  failure  of  An- 
derson and  Co.  that  his  paper  had  ever  been  communicated  to  the  plaintiffs  ; 
considering  this  as  a  mere  overture  to  guaranty,  it  appears  to  us  that  the  de- 
fendant ought  to  have  had  notice  that  it  was  so  regarded,  and  meant  to  be  ac- 
cepted ;  or  that  there  should  have  been  a  subsequent  consent  on  his  part  to 
convert  it  into  a  conclusive  guarantee." 

So,  in  Symmons  v.  Want,(k)  which  was  an  action  upon  a  guarantee  ;  *and 
in  support  of  it,  the  plaintiff  gave  in  evidence  a  letter  in  the  hand-writing  of 
the  defendant,  but  without  date,  in  which  the  letter  states,  "  I  have  no  objec- 
tion to  guaranty  the  payment  of  the  rent,  as  far  as  that  of  each  quarter,  during 
Mr.  T.  Want's  continuance  in  possession."  This  is  not  sufficient,  without 
shewing  that  the  plaintiff  accepted  the  defendant's  offer. 

So,  in  Phillips  v.  Bateman,(l)  where  the  defendant,  on  occasion  of  there  be- 
ing a  great  run  upon  the  Milford  banking-house  of  Messrs.  C.  A.  and  T.  Phil- 
lips, went  to  the  bank  and  told  the  owners  of  notes  issued  by  the  bank,  who 
were  waiting  for  payment,  that  he  had  come  to  a  resolution  to  support  the  bank 
with  30,000/.,  at  which  the  holders  then  present  were  satisfied,  and  said  they 
would  take  no  more  money  than  was  necessary,  and  would  keep  the  rest  of 
their  notes  till  they  got  again  into  currency  ;  and  afterwards  the  defendant  sign- 
ed the  following  written  paper  :  "  I  do  hereby  undertake  to  be  accountable  for 
the  payment  of  the  notes  issued  by  the    Milford  bank,   at  their   said  banking- 

(k)    2    Stark.  371.     See     also      Clinton         (I)  16  East  Rep.  356. 
v.  Cooke,  1  Scho.  &  Lef.  22. 

*209 


Chap.  2.]        For  the  Debt  or  Default  of  Another.  209 

house  called  the  Milford  and  Pembrokeshire  bank,  as  far  as  the  sum  of  30,000/. 
will  extend  to  pay  ;  which  will  be  an  additional  security  to  the  public  to  that 
amount  to  the  estate  and  effects  of  Charles  Allen  Phillips  and  Thomas  Phil- 
lips, esquires,  partners  in  the  said  bank.  (Signed)  Nathaniel  Phillips.'''  The 
Court  held,  that  though  the  bank  aftei  wards  stopped  payment,  yet  the  defendant 
was  not  liable  upon  this  undertaking  to  an  action  by  the  individual  holders, 
who  had  taken  the  notes  after  notice  of  such  undertaking,  and  before  the  stop- 
page. 

So,  a  guarantee  or  promise  to  be  answerable  for  money  or  goods  to  be  sup- 
plied to  a  third  person,  will  not  extend  to  a  present  existing  debt,  and  the  mere 
cancelling  an  old  note  of  hand,  and  substituting  a  new  one,  will  not  satisfy  the 
gaurantee,  which  is  prospective  in  its  effect.  (»;)( 114)  But  a  guarantee  for  the 
payment  of  goods,  given  on  the  7th,  will  cover  goods  contracted  for  on  the  6th, 
but  not  delivered  till  the  7th,  and  then  supplied  on  the  credit  of  the  gaurantee. 
Thus,  in  the  case  of  Simmons  v.  Keating,  (n)  which  was  an  action  of  assump- 
sit on  the  defendant's  guarantee,  which  was  contained  in  a  letter  written  by  the 
defendant  to  the  plaintiffs,  in  which  he  engaged,  that  in  consideration  they 
would  supply  his  niece,  Mary  Growling,  with  such  goods  as  she  from  time  to 
time  should  wish  to  buy,  he  would  guarantee  to  them  the  payment  of  any  sum 
due  to  them  on  her  account,  not  exceeding  50/.  Credit  to  be  given  for  six 
months,  to  commence  from  the  next  January.  It  appeared  that  Mary  Croiding 
had  applied  to  the  plaintiffs  on  the  6th  of  December  to  supply  her  with  goods 
which  were  selected  by  her,  but  which  they  refused  to  supply  her  with,  unless 
she  could  procure  a  respectable  reference,  which  should  satisfy  them  as  to  her 
responsibility.  *After  this  (on  the  seventh)  she  obtained  a  guarantee  in  ques- 
tion ;  and  then  the  goods,  which  had  been  previously  agreed  upon,  were  sent  to 
her.  It  appeared  also,  that  a  bill  of  parcels  had  been  sent  with  these  goods 
entitled  in  this  way,  To  Messrs.  Simmons  and  Co.,  at  three  and  three  months' 
credit.  Abbott  Ch.  J.  was  of  opinion,  "that  as  the  sale  of  the  goods  was  not 
complete  till  the  delivery,  and  the  delivery  was  subsequent  to  the  guarantee, 
and  made  upon  the  faith  of  it,  the  value  of  the  goods  was  recoverable  under  the 
guarantee.  The  credit  under  the  guarantee  and  bill  of  parcels  were  both  six 
months." 

A  recital  professing  to  state  the  guarantee  between  the  parties  does  not  neces- 
sarily confine  the  extent  of  the  responsibility  of  the  surety  to  the  limits  there- 
in specified  ;  for  where  a  new  subject  matter  of  guaranty  is  afterwards  intro- 
duced into  the  writing,  and  the  agreement  expressly  extends  to  it,  the  surety 
is  liable  to  both  subjects.     But  the  rule  is,   that   where  the   limit  is  definitely 

(m)  Glyn  v.  Hertel,  2  Mo.  134.  8  Taunt.         (n)  2  Stark.  426. 
203.  S.  C. 


(Ill)  See  Leonard  v.  Vredenburgh,  8  J.  R.  30.  2d  edit.  Per  Kent,  Ch.  J. 

27  *210 


210  Of  a  Guarantee  or  Promise  to  be  Jlnswerable  [Part  II. 

marked  out  in  the  recital,  it  is  not  to  be  extended  by  any  subsequent  general 
words.(o) 

2.  Of  the  extent  and    continuance  of  a    guarantee.] — The    extent 
and  continuance  of  a  guarantee  must    depend    entirely  on  the    particular   en- 
gagement entered  into,  and  the  circumstances  and  situation  of  the  parties. (115) 
Thus,  in  the  case  of  Mason  v.  Pritchard,{p)  the  defendant  engaged  in  writing 
to  guaranty  the  plaintiff  "  for  any  goods  he  hath  or  may  supply  W.   P.   with, 
to  the  amount  of  100Z."     And  at  the  trial,  it  was  proved,  that  at  the  time  when 
the  guarantee  was  given,  goods  had  been  supplied  to  W.   P.  to  the  amount  of 
66Z.,  and  another  parcel  was  supplied  afterwards,  amounting  together  to   124/., 
all  of  which  had  been  paid  for;  and  the  sum  in  dispute  was  for  a  further  supply 
of  goods  to  W.  P.     And  the  question  was,  whether  this  was  a  continuing  con- 
tract for  guarantying  the  supply  of  goods  at  any  times  afterwards  furnished,  as 
long  as  the  parties  continued  to  deal  together,  or  whether  it  were  continued  to 
the  first  hundred  pounds  worth  of  goods   furnished  1     A  verdict  was  found  for 
the  plaintiff;  but   it  was   afterwards  moved  to  enter  a  nonsuit,  on  the  ground 
that  it  was  a  limited  and  not  a  continuing  guarantee.     But  the  Court  of  King's 
Bench  were  of  opinion,    "  that  this    was  a  continuing  or  standing  guarantee  to 
the  extent  of    1001.  which    might    at  any  time  become    due    for  the  goods 
supplied  until    the    credit  was   recalled.     The  words,  they  said,  were   to  be 
taken    as    strongly    against    the   party    giving    the    guarantee     as    the  sense 
of  them  would  admit  of;  and  the  meaning  was  that   the  defendant   would   be 
answerable,  at  all  events,   for  goods   supplied  to   his  brother    to   the  extent  of 
100?.  at  any  time  ;  but  that  he   would  not  be   answerable   for  more  than  that 
*sum."     So,  in  the  case  of  Merle  v.  Wells,  (q)  which  was  an  action  of  assump- 
sit upon  a  guarantee  contained  in  a  letter,  in  which  the  defendant  stated,  "  that 
he  had  been  applied  to  by    his   brother    William   Wells,   to  be  bound   to  the 
plaintiffs  for  such  debts  as  he  might  contract  with  them  not  exceeding  100Z.  for 
goods,  and  then  added  these  words — '  I  consider  myself  bound  to  you  for  any 
debt  he  may  contract  for  his  business  as  a  jeweller,  not  exceeding  100/.  after 

(o)  Per  Lord  Ellenborovgh.2  Campb.  41.     414.  and  note  5. 
See  also  Pearsall   v.    Summersett,  4  Taunt.         (p)   12  East  Rep.  227.  2  Campb.  436. 
693.     Lord  Arlington  v.  Merricke,  2  Saund.         {q)  2  Campb.  413. 

(115)  Where  the  defendant,  in  the  country,  addressed  a  letter  to  the  plaintiffs  in  the  city 
of  New-York,  stating  that  his  brother  R.  wished  to  go  into  business  in  that  city,  as  a  retailer 
of  goods,  in  a  small  way,  and  promising  to  hold  himself  accountable  for  such  goods,  furnish- 
ed by  the  plaintiffs,  as  R.  should  call  for,  from  300  to  500  dollars  worth  ;  the  plaintiffs  fur- 
nished R.  with  divers  parcels  of  goods,  from  the  1 1th  of  September,  1317,  to  28th  October,  1818  ; 
this  was  held  to  be  a  continuing  guaranty  to  the  amount  specified,  and  was  not  limited  to 
the  bill  of  parcels  first  delivered.  Rapelye  fy  Purdy  v.  Bailey,  5  Conn.  Rep.  149.  But  where 
A.  &  B.  addressed  a  letter  of  credit  to  C.,  stating,  "If  D.  wishes  to  take  goods  of  you,  on 
credit,  we  are  willing  to  lend  our  names,  as  security,  for  any  amount  he  may  wish."  D.  took 
goods  of  C,  on  credit,  several  times,  for  which  he  paid  ;  and  afterwards,  took  another 
parcel,  on  credit,  for  which  he  gave  his  note  to  C,  and  which  was  not  paid.  In  an  action 
brought  by  C.  against  A.  &  B.  for  the  balance  due  on  the  note,  it  was  held,  that  the  letter  of 
credit  did  not  extend  beyond  the  first  parcel  of  goods  delivered  to  D.  ;  and  that  the  defen- 
dants were  not  liable  for  an  indefinite  time,  but  only  for  an  indefinite  amount,  for  one  time. 
Rogers  v.  Warner,  8  J.  R.  92.  2d  edit. 

#211 


Chap.  2.]       For  the  Debt  or  Default  of  Another.  211 

this  date.' '  The  plaintiffs  continued  to  supply  the  brother  with  goods  in  his 
business  above  twelve  months  afterwards  to  a  considerable  amount,  during 
which  time  they  several  times  balanced  accounts  with  him,  and  he  paid  them 
above  the  sum  of  100/.  The  question  was,  whether  the  defendant's  guarantee 
was  limited  to  the  first  100/.,  for  which  the  plaintiffs  gave  credit  to  W.  Wells, 
or  extended  to  any  sum  of  that  amount  which  he  should  thereafter  owe  them 
for  goods  supplied  to  him  in  the  business  of  a  jeweller.  Lord  Ellenborough  Ch. 
J.  said,  "  I  think  the  defendant  was  answerable  for  any  debt  not  exceeding 
100/.,  which  W.  Wells  might  from  time  to  time  contract  with  the  plaintiffs 
in  the  way  of  his  business.  The  guarantee  is  not  confined  to  one  instance, 
but  applies  to  debts  successively  renewed.  If  a  party  means  to  be  surety  only 
for  a  single  dealing,  he  should  take  care  to  say  so.  By  such  an  instrument  as 
this,  a  continuing  suretyship  is  created  to  the  special  amount." 

A  party  under  such  a  liability  has  no  relief  in  equity  ;  for  in  the  case  of 
Shepherd  v.  Beechar,(r)  the  plaintiff  placed  his  son  an  apprentice  for  seven 
years  with  the  defendant,  and  was  bound  in  a  bond  of  1000/.  penalty  for  his 
fidelity.  In  about  ^three  years  after,  the  apprentice  embezzled  cash  to  the 
amount  of  203/.,  which  the  plaintiff  paid,  and  wrote  to  the  defendant,  desiring 
that  he  would  not  in  future  trust  the  apprentice  with  any  cash.  The  defen- 
dant, however,  did  trust  him,  and  at  the  expiration  of  the  apprenticeship,  he 
was  found  to  have  embezzled  2,750/.,  and  an  action  was  commenced  upon  the 
bond  against  the  father,  who  brought  this  bill  in  equity  to  be  relieved  against  it, 
partly  upon  the  ground  of  the  neglect  in  the  master  in  trusting  the  apprentice  af- 
ter the  warning  given  by  the  plaintiff.  But  the  Lord  Chamcellor  said,  "  The 
father  continued  bound,  and  ought  not  to  have  satisfied  himself  with  sending 
the  letter  and  taking  no  care  of  the  matter,  but  should  have  endeavoured  to 
have  made  some  end  of  the  matter  and  got  up  the  bond.  Wherefore  he  must 
continue  liable  to  answer  some  embezzlements,  unless  there  should  appear 
fraud  in  the  master." 

But  in  the  case  of  Kirh y  v.  the  Duke  of  Marlborough  and  others,  (s)  it  was 
decided  that  a  bond  conditioned  for  the  payment  of  all  such  *sum  or  sums  not 
exceeding  3000/.,  with  lawful  interest  as  should  or  might  at  any  time  or  times 
be  advanced  and  lent  by  the  plaintiffs  to  C.  or  paid  to  his  use  by  his  order  or 
direction,  was  only  a  guarantee  for  advances  once  made  to  the  amount  of 
3000/.,  and  not  a  continuing  guarantee  for  advances  to  be  made  at  any  time. 

So,  in  the  case  of  Melville  v.  Hayden,(t)  where  the  plaintiff  declared  upon 
the  following  guarantee:  "Memorandum,  23d  September  1818,1  engage  to 
guaranty  the  payment  of  Mr.  Amos  Moulden  to  the  extent  of  60/.  at  quarterly 
account,  bill  two  months,  for  goods  to  be  purchased  by  him  of  William  and 
David  Melville.'"  At  the  trial,  it  appeared  that  there  had  been  a  delivery  of 
goods  for  three  quarterly  accounts,  all  of  which  had  been  satisfied  by  Moulden  ; 
the  default  was  made  by  him  in  the  fourth  quarterly  payment,  for  which  the 


('•)  J  P-  W-  f88.  (0  3  Bam.  &  Aid.  593. 

(«)  2  Maule  &  Scl.  18. 


*2I2 


212  Of  a  Guarantee  or  Promise  to  be  Answerable    [Part  II. 

action  was  brought.     It  also  appeared,  that   in  the   first  quarter  goods  to  the 
amount  of  591.  4s.  had  been  furnished,  and  in  the  second  and  third  quarters  to 
a  greater  extent.      The  learned  Chief  Justice  Abbott  thought  at  the  trial,  that 
the  guarantee  was  at  an  end  before  the  goods  were  furnished  for  which  the  ac- 
tion was   brought,    and    directed    a    nonsuit,  giving  to   the  plaintiff  leave    to 
move  to  enter  a  verdict  for  60/.,  in  case  the  Court  should  be  of  a  different  opin- 
ion.    And  a  motion  was  accordingly  made :     But,    after   argument,  the  Court 
determined,  that  the  memorandum   was  not  a  continuing  guarantee  ;  and  Baylcy 
Just,  said,  "  The  words  '  quarterly  account'   do  not  seem  to  me  to  vary   the 
case  ;  they  only  mean  that  at  whatever  time  the  goods  might  have   been  deliv- 
ered, the  account  for  them  should  be  rendered  quarterly.     A  party  who  takes  a 
guarantee  of  this  sort  should  carefully  provide  that  these  words  in  it  are  expres- 
sive of  its  being  a  guarantee  for  goods  to   be   furnished  by  him  from  time    to 
time.     The  words  of  the   guarantee   in  the   case  of  Mason  v.  Pritchard,(u) 
were   very  different ;  they  were,    '  for   any   goods   he  hath  or    may  supply.' 
So,  that  there  the  guarantee  was  applicable  to  any  goods  furnished  at  any  time 
to  the  amount  of  100/.,  whatever  intervening  payments  might  have  taken  place. 
They    were    therefore   equivalent  to   the   words  '  any   goods   furnished  from 
time  to  time.'     In  this  case,  however,  I  think  there  was  no  continuing  guar- 
antee." 

3.  Of  the    duration  of  a    guarantee  given  to  a  partnership  firm, 

OR  BY    A    PARTY    WHO    AFTERWARDS    TAKES    A  PARTNER.]    If  A.    become  bound 

to  B.  under  condition  that  C.  shall  truly  account  to  B.  for  all  sumsjjf  money 
received  by  C.  for  B.'s  use,  and  C.  afterwards  with  B.'s  knowledge  takes  D. 
as  his  partner,  the  guarantee  does  not  extend  to  sums  of  money  received  by  C. 
for  B.'s  use,  after  the  formation  of  the  partnership,  (x)  So,  a  bond  conditioned 
to  repay  to  five  *persons  all  sums  advanced  by  them  or  any  of  them,  in  their 
capacity  of  bankers,  will  not  extend  to  sums  advanced  after  the  decease  of  one 
of  the  five  by  the  four  survivors,  the  four  then  acting  as  bankers,  (y)  So,  a 
bond  given  to  three  partners,  and  afterwards  one  of  them  dies,  and  the  survivors 
then  take  a  new  partner  into  the  firm,  the  surety  is  discharged  from  all  liabil- 
ities for  money  or  goods  supplied  to  the  debtor  after  the  death  of  the  part- 
ner, (z) 

3-  OF  PROMISES  TO  BE  ANSWERABLE  FOR  THE  DEBT  OR  DEFAULT  OF 
ANOTHER,  IN  CONSIDERATION  OF  FORBEARANCE  TO  SUE,  &c.  OR 
OF  DISCHARGING  THE  DEBTOR,  OR  OF  GIVING  UP  SECURITIES,  &c. 

An  action  will  lie  upon  a  promise  in  writing  to  pay  a  sum  of  money  in  con- 
sideration of  giving  time,  or  forbearing  to  sue  a  third  person  for  a  precedent 

(k)  Ante  210.  Lucas,  1  T.  R.  291.  n. 

(.t)  Bellairs  v.  Ebsworth,  3  Campb.    53.  See  {y)  Weston  v.  Barton,  4  Taunt.  673. 

also  Exparte    Marsh,    2    Rose    Rep.    239.  (z)  Strange  v.  Lee,  3  Term  Rep.  484. 
Wright  v.  Russell,  3  Wils.   530.    Barclay  v. 

*213 


Chap.  2.]    For  the  Debt  or  Default  of  Another.  213 

debt  or  other  cause  of  action,  (a)  (116)  Thus,  if  A.  is  indebted  to  B.  in  10/. 
and  upon  this  C.  promises  that  in  consideration  that  he  will  forbear  A.  till  such 
a  day,  and  if  A.  does  not  pay  -him  on  that  day,  he  himself  will  pay  B.  the  10/. 
on  the  same  day,  this  is  a  valid  promise,  upon  which  B.  may  have  an  action 
against  C. ;  for  though  A.  had  the  whole  day  to  pay  it,  and  so  it  was  impossible 
for  C.  to  pay  it  the  same  day,  if  he  did  not  pay  it,  yet  the  substance  of  the  prom- 
ise is  to  pay,  and  the  time  limited  being  impossible,  is  void,  and  then  it  ought 
to  be  paid  on  request,  (/>)  So,  where  the  defendant  was  indebted  to  the  plaintiff 
ln  10/.  for  so  much  money  lent,  and  in  consideration  that  the  plaintiff  would  not 
sue  him  for  the  10/.,  he  promised  to  deliver  to  the  plaintiff  ten  quarters  of  barley 
upon  request.  The  plaintiff  showed  that  he  did  not  sue,  &c.  and  that  on  such 
a  day  he  required  the  barley,  but  that  the  defendant  refused  to  deliver  it.  In  an 
action  upon  this  assumpsit,  it  was  adjudged  for  the  plaintiff  (c)  So,  if  A.  be 
indebted  to  B.  in  100/.  and  B.  is  about  to  commence  a  suit  for  the  recovery 
thereof,  but  C.  a  stranger  comes  to  him  and  says,  that  if  he  will  forbear  him,  he 
himself  will  pay  it  :  this  is  a  good  consideration  for  the  promise,  B.  averring 
that  he  had  abstained  and  forbore  to  sue  A.  et  adhuc  did  abstain  and  forbear, 
though  no  certain  time  was  appointed  for  the  forbearance  ;  for  it  seems  a  per- 
petual forbearance  is  intended,  the  which  he  hath  per  formed,  (d)  So,  if  A.  be 
indebted  to  B.,  and  C.  a  stranger  says  to  him,  that  if  he  will  forbear  him  per 
paululum  temporis  that  he  himself  will  pay  him  ;  this  is  a  good  consideration  for 
an  assumpsit,  averring  a  certain  time  of  forbearance. (e) 

*So,  if  A.  is  indebted  to  B.  and  B.  causes  him  to  be  arrested,  and  while  he  is 
under  the  arrest,  a  stranger  comes  to  B.  and  says,  that  if  he  will  forbear  A.  per 
paululum  temporis  he  will    pay  him,  upon  which  B.  suffers  A.  to  go  at   large  ; 
this  is  a  good  consideration  for  the  promise,  though  he  arrests  A.  within  an  hour 
after  ;  for  the  deliverance  from  the  present  danger  is  a  good  consideration,  (f) 
So,  in  the  case  of  Cowlin  v.    Cook,(g)   the  plaintiff  declared  that  the  defendant 
was  bound  to  him  in  100/.  which  he  intended  to  sue  him  for,  and  the  defendant 
in  consideration  that  the  plaintiff  would  defer  the  payment  and  not  sue  him  upon 
that  bond,  promised  that  he  would  pay  him.     It  was  objected  that  the  consider- 
ation was  not  good,  for  he  might  forbear   and  defer   for  a  day  only,  &c.~     But 
the  Court  held  it  good  ;  for  the  deferring  shall  be  intended  during  all  the  life  of 
the  obligee  ;   and  that  if  he  sues  him  sooner  upon  that  bond,  an  action  on  the 
case  lies ;  and  so  it  was  ruled  in  one  Barke?iham,s  case.     But  if  it  had  been 

(a)  Com.  Die.  tit.  Action  on  assumpsit.  B.  1.         (r)  1   Rol.  Abr.  27.  pi.  46.  1  Danv.  55.  pi. 

(ft)  1  Rol.  Abr.  15.  pi.  6.    1  Bac.  Abr.  tit.  46.  But  see  1  Danv.  51.  pi.  25,  26.  and  Com. 

Assumpsit.  B.  Dip.  tit.  Action  on  Assumpsit.  B.  1.  contra. 

(c)  1  Vin.  Abr.  322.  pi.  1.  ( /)  ]   R01.  Abr.  27.  pi.  47.  1   Danv.  55.  pi. 

(</)  1  Rol.  Abr.  27.pl.  45,  1  Danv.  Abr.  55.  47. 
Pi-  45.  (£)  Noy  83.  Latch.  151.  S.  C. 

(116)  The  rule  expressed  in  the  text  is  fully  admitted  in  the  following  cases.  Simpson 
v.  Patten,  4  J.  R.  422.  Jackson  v.  Rayner,  12  J.  R.  291.  Turner  v.  Hubbell,  2  Day,  457.  Pea- 
body  x.  Harvey,  4  Conn.  Rep.  119.  Elting  v.  Vanderlyn,  4  J.  R.  237.  TUeston\.  Netllelon, 
6  Pick.  509.     Packard  v.  Richardson,  17  Mass.  Rep.  122.     Sec  ante,  note(10S.) 


# 


214 


214     Of  a  Guarantee  or  Promise  to  be  Answerable  [Part  II. 

Quod  deferret  per  paululum  tcfjiporis,  it  had  not  been  good  without  putting  a  cer- 
tain time. 

So,  in  the  case  of  Waters  v.  Glassop,{h)  the  plaintiff  declared  that  the  defen- 
dant's son  was  indebted  to  him  in  a  sum  of  money,  and  that  he  had  a  design  to 
arrest  him  for  it ;  that  the  defendant,  in  consideration  that  the  plaintiff  at  the 
special  instance  and  request  of  the  defendant  would  forbear  to  arrest  the  defen- 
dant's son  until  after  the  23d  of  October,  the  defendant  assumed  to  pay  to  the 
plaintiff  on  or  before  the  23d  of  October,  so  much  as  the  defendant's  son  should 
be  indebted  to  the  plaintiff  upon  the  balance  of  the  account  to  be  stated  between 
the  defendant's  son  and  the  plaintiff ;  and  the  plaintiff  averred  that  an  account 
was  stated  of  all  debts,  owing  by  the  defendant's  son,  to  the  plaintiff,  and  upon 
that  account  the  defendant's  son  was  found  indebted  to  the  plaintiff  in  20/.  and 
avers,  that  he  forbore  to  arrest  the  defendant's  son,  from  the  time  of  the  promise 
hucusque :  and  that  the  defendant  did  not  pay  the  20/.  &c.  Upon  the  trial,  a 
verdict  was  found  for  the  plaintiff.  But  it  was  moved  in  arrest  of  judgment  ; 
that  the  consideration  was  not  good  ;  becau  se  since  the  plaintiff  was  to  forbear 
until  after  the  23d  of  October,  and  the  defendant  to  pay  the  money  on  or  before, 
it  might  be,  that  after  the  defendant  had  paid  the  money,  the  plaintiff  would  not 
perform  his  part,  but  arrest  the  defendant's  son  before  the  time  agreed  by  the 
promise.  But  the  Court  said,  "  The  consideration  is  well  enough,  for  the  de- 
fendant has  to  the  last  instant  of  the  23d  of  October  to  pay  the  money,  and  the 
next  instant  for  forbearance  the  plaintiff  has  performed  his  part,  for  he  is  not 
bound  to  forbear  but  only  one  instant  after  the  23d  of  October,  and  therefore  it 
is  well  enough." 

*So,  in  Harris  v.  Richards,  (i)  which  was  an  action  of  assumpsit;  and   the 
declaration  stated,  that  whereas  one  Bond  was  bound  to  the  plaintiff  in  an  obli- 
gation of  40/.  for  the  payment  of  20/.  ;  and  whereas  the  defendant,  was  bound 
to  one  Hodges  in  an  obligation  of  100/.  dated  5th  February,  19  Jac.  1.  for  the 
payment  of  55/.  the  5th  February  following,  and  the  said  20/.  and    55/.  being 
due  and  not  paid,  that  the  defendant,  the  1st  of  February  1624,  which  was  in 
the  22d  year  of  James  the  first,  in  consideration  the  plaintiff  would  forbear  the 
payment  of  the  20/.  until  1627,  and  in   consideration  the  plaintiff  would  com- 
pound with  the  said  Hodges  for  the   said  50/.  and  the  interest  then  due,   and 
deliver  the  said  bonds  into  his  hands,  assumed  to  pay  to  him  the  said  20/.  and 
the  said  50/.  and  all   the  interest  which  he  should  pay  or  compound  for  ;  and 
alleges  in  fact,  that  he  did  forbear  the  said  20/.,  and  upon  the  1st  of  March  1624 
paid  the  said  50/.  and  15/.  for   interest,  and   obtained  the  said   bond   into  his 
hands,  and  that  upon  such  a  day,  year,  and  place,  he  gave  notice  thereof  to  the 
defendant,  and  required  of  him  payment  thereof,  according  to  his  promise,  who 
had  not  paid  it,  and  therefore  he  brought  this  action.     After  verdict  for   the 
plaintiff,  it  was  moved  in  arrest  of  judgment,  that  this  action  lies  not;  for  it  is 
no  lawful  consideration  to  pay  interest.     Sed  non  allocatur  ;  "  for  it  is  to  com- 


(k)  1  Ld.  Raym.  357.  (t)  Cro.  Car.  272. 

*215 


Chap.  2.]  For  the  Debt  or  Default  of  Another.  215 

pound  a  forfeited  bond,  which  is  a  good  consideration;  also  it  is  no  unlawful 
consideration  to  pay  interest,  not  being  more  than  is  permitted."  The  second 
exception  was,  that  there  was  not  any  consideration  why  the  defendant  should 
pay  the  20/.,  for  he  had  not  any  benefit  thereby.  Scd  non  allocatur  ;  "  for  it 
is  a  sufficient  consideration  that  the  plaintiff  at  his    request   would  bear  it." 

So,  in  the  case  of  Davison  v.  Hcslop,{k)  which  was  an  action  of  assumpsit  ; 
and  it  'was  alleged  that  Fenwicke  was  indebted  to  the  plaintiff  for  arrears  of 
an  annuity  of  117/.  and  appointed  the  defendant  then  his  receiver,  to  pay  it  out 
of  the  rents,  due  at  Martlemas  next  ensuing ;  and  that  the  plaintiff  and  defen- 
dant accounted,  and  thereupon  it  appeared,  that  117/.  was  due  to  him.  The 
defendant  promised  that  if  the  plaintiff  would  forbear,  he  would  pay  it  within  a 
month  after.  For  the  plaintiff,  it  was  moved  in  arrest  of  judgment,  that  it  did 
not  appear  that  the  defendant  received  any  rent  at  Michaelmas,  and  the  appoint- 
ment was  to  pay  it  only  out  of  the  rents  due  at  Martlemas.  But  to  this  it  was 
answered,  that  it  should  be  so  intended  now,  the  defendant  having  promised  to 
pay  it  upon  forbearance  ;  and  of  this  opinion  were  the  court,  and  gave  judgment 
for  the  plaintiff. 

So,  if  A.  sues  a  writ  of  privilege  (/)  against  B.,  and  B.  in  consideration  that 
A.  will  at  the  request  of  B.  forbear  further  to  prosecute  the  said  writ,  promises 
50/.  to  A.  this  is  a  good  promise,  though  it  be  not  averred  *that  the  plaintiff  had 
any  good  cause  of  action  ;  for  the  promise  implies  a  cause,  inasmuch  as  B. 
desired  a  stay  ;  this  also  requires  a  loss  of  the  writ,  and  loss  of  the  suit.  So, 
where  a  plaintiff  sued  out  a  capias  ad  respondendum,  (m)  and  after  the  return 
thereof,  the  defendant,  in  consideration  the  plaintiff  would  forbear  further 
prosecution,  promised  to  pay,  &c.  The  Court  held  this  a  good  consideration  ; 
and  though  the  first  return  be  past,  yet  an  alias  may  be  taken  out ;  and  judg- 
ment was  given  for  the  plaintiff.  So,  in  the  case  of  Jennings  v.  Hurley, (n) 
which  was  an  action  of  assumpsit ;  and  the  plaintiff  declared  that  whereas 
one  Basset  was  indebted  unto  him  in  50/.  and  that  he  brought  debt,  and  had 
judgment  to  recover,  and  thereupon  sued  out  a  capias  ad  satisfaciendum,  and 
an  exigent  against  Basset,  who  was  thereupon  outlawed,  and  that  the  plaintiff 
intended  to  sue  a  capias  utlagatum ;  that  the  defendant,  in  consideration  the 
plaintiff  would  forbear  to  proceed  upon  the  capias  utlagatum  which  he  had 
sued  out,  until  Easter  Term  next  following,  promised  that  if  Basset  did  not 
pay  the  debt,  that  he  would  pay  it ;  and  alleged  in  fact  a  non-performance  of 
the  promise.  The  defendant  pleaded  non  assumpsit,  which  was  found  against 
him;  and  after  a  verdict  for  the  plaintiff,  it  was  moved  in  arrest  of  judgment 
that  the  action  lay  not ;  for  this  consideration  is  against  law,  and  also  void,  be- 
cause this  process  is  at  the  queen's  suit  and  not  at  the  party's.  But  Gawdey, 
Fenner,  and  Yelverton,  held  that  the  consideration  was  good  ;  for  it  is  the  par- 
ty's suit  a3  well  as  the  queen's;  for  the  party  is  the  means  to  entitle  the  queen 


(k)  2  Lev.  20.  Raym.  211.  S.  C.  (m)  2  Keb.  200.  pi.  3.  1  Vin.  Abr.  323.  pi. 

(/)  Bedwellv.   Cotton,  Hob.  216.   1  Danv.     47. 
47,  pi.  6.  (n)  Cro.  Eliz.  909.  Yel.  19.  S.  C. 

*216 


216  Of  a  Guarantee  or  Promise  to  be  Answerable  [Part  II. 

thereto,  and  the  party  hath  the  special  carriage  thereof;  and  if  the  sheriff  suffer 
the  party  arrested  upon  such  a  capias  utlagatum  to  escape,  it  is  an  escape 
against  the  plaintiff.  Popham  e  contra  :  "  For  the  suit  is  merely  now  the 
queen's  suit,  and  a  means  whereby  the  party  may  have  his  execution.  For  as 
the  queen  is  entitled  thereto  by  the  party,  so,  after  the  outlawry,  the  party  is 
thereto  by  the  queen,  and  that  issueth'  for  the  contempt  to  the  queen.  And  if 
the  party  will  not  take  it,  the  queen's  attorney  may  sue  it  out ;  and  the  queen 
is  not  of  right  bound  to  satisfy  the  party  out  of  the  goods  which  are  seized  by 
this  writ,  although  she  doth  it  out  of  grace  many  times.  But  a  petition  of  right 
lieth  not  in  such  case :  and  although  the  plaintiff  hath  advantage  thereof,  in  re- 
gard of  the  party  who  is  taken  thereby  to  be  in  execution  (which  is  the  reason 
that  he  may  have  debt  upon  the  escape),  yet  he  cannot  stay  the  execution  of 
this  writ,  so  the  consideration  is  void."  But,  notwithstanding,  the  other  judges 
gave  rule,  that  if  other  matter  were  not  shown  before  such  a  day,  judgment 
should  be  entered  for  the  plaintiff,  and  that  the  defendant  might  bring  his  writ 
of  error.     And  no  cause  was  afterwards  shown,  &c. 

So,  if  A.  exhibits  a  bill  in  Chancery  (o)  against  B.  supposing  thereby  *that  he 
had  delivered  300/.  to  B.,  in  trust,  upon  which  B.  in  consideration  that  A.  would 
end  all  suits  against  him  in  Chancery,  promises  to  pay  him  100/.  ;  in  this  case 
though  A.  has  remedy  for  it  at  common  law  by  writ  of  account,  yet  this  is  a 
good  consideration,  so  as  to  have  an  action  upon  the  case  upon  the  assumpsit, 
because  the  money  was  delivered  in  trust,  which  is  proper  for  the  Chancery, 
and  the  suit  there  is  a  matter  of  charge.  So,  if  A.  promises  B.  in  considera- 
tion that  he  will  not  sue  an  attachment  out  of  Chancery  (p)  upon  a  decree 
which  is  there  against  him,  that  then  he  will  pay  20/.  (it  seems  it  is  intended 
that  the  decree  was  at  his  suit)  this  is  a  good  consideration  to  maintain  an  ac- 
tion upon  the  case,  for  hereby  shall  he  avoid  the  imprisonment  of  his  body,  of 
which  the  Chancery  had  power  for  the  contempt  of  the  decree. 

If  an  heir  be  bound  by  a  bond  of  his  ancestor,  and  has  assets  ;  and  in  consid- 
eration that  the  obligee  will  forbear  to  sue  him,  he  promises  to  pay  the  money 
due  thereon,  an  action  of  assumpsit  will  lie  upon  this  promise  :  but  if  the  heir  is 
not  bound  by  the  bond,  no  action  is  maintainable.  Thus,  in  the  case  of  Barber 
v.  Fox,(q)  which  was  an  action  of  assumpsit,  and  the  declaration  stated,  that 
whereas  one  Anthony  Fox,  the  father  of  the  defendant  by  his  writing  obligato- 
ry became  bound  to  the  plaintiff  in  92/.  12.?.  upon  condition  to  pay  him  51/. 
16  s.  at  a  certain  day  past,  which  was  not  paid,  and  so  the  obligation  became 
forfeited,  and  afterwards  Anthony  Fox,  the  father,  died,  and  the  defendant  was 
his  son  and  heir  ;  wherefore  the  plaintiff  intended  to  sue  'the  defendant  as  son 
and  heir  on  the  said  bond  ;  and  the  defendant  having  notice  of  it,  in  considera- 
tion that  the  plaintiff,  at  the  special  instance  and  request  of  the  defendant, 
would  forbear  his  intended  suit  against  the  defendant  as  son  and  heir  on  the  said 
bond,  undertook  and  promised  the  plaintiff  to  pay  him   the  said  51/.   16s.  on 

(o)   1  Danv.  46.  pi.  5.  Raym.  372.  pi.  1.  1  Danv.  Abr.  55.  pi.  43. 

0>)    Cro.  Eliz.  768.  1  Rol.    Abr.  30.    Y.        ($)  2  Saund.  136. 

*217 


Chap.  2.]      For  the  Debt  or  Default  of  Another.         217 

request ;  and  the  plaititifY  averred  forbearance,  and  yet  the  defendant  had  not 
paid  the  said  money,  although  on  such  a  day  and  year  he  was  requested,  &c. 
On  non  assumpsit  pleaded,  a  verdict  was  found  for  the  plaintiff.  But  it  was  af- 
terwards moved  in  arrest  of  judgment,  that  there  was  no  consideration  ;  for  it 
does  not  appear  that  the  defendant  was  suable  upon  this  bond  as  son  and  heir, 
for  it  is  not  shown  that  Anthony  Fox,  the  defendant's  ancestor,  whose  son  and 
heir  he  is,  had  bound  himself  and  his  heirs  by  the  said  bond ;  and  if  the  heir  is 
not  bound  expressly  by  name,  he  is  not  bound  at  all  ;  and  therefore  here  was 
no  consideration  to  found  this  promise;  wherefore  judgment,  was  staid  until  it 
should  be  moved  on  the  other  side.  Afterwards  Saunders,  for  the  plaintiff, 
moved  for  judgment,  and  said,  "  That  though  the  declaration  would  have  been  bad 
on  demurrer,  yet  is  now  made  good  by  the  verdict;  for  the  jury  have  found 
that  the  defendant  was  bound  as  heir  in  the  said  bond,  for  otherwise  there  was 
*no  consideration;  and  they  ought  to  have  found  that  the  defendant  did  not  un- 
dertake, &c.  if  there  was  no  consideration,  or  otherwise  they  might  be  attained 
for  a  false  verdict ;  but  they  having  found,  that  the  defendant  did  undertake 
and  promise  as  the  plaintiff  has  declared,  it  ought  of  necessity  now  to  be  in- 
tended that  Anthony  Fox  had  bound  himself  and  his  heirs  by  the  same 
bond."  But  the  court  said,  "  Though  they  would  intend  a  personal  lien 
against  an  executor,  if  he  has  assets  in  his  hands,  though  it  be  not  averred, 
yet  they  will  not  intend  a  real  lien  against  an  heir  ;  though  he  be  bou  nd  by 
the  bond  of  his  ancestor,  unless  it  is  expressly  alleged  ;  and  therefore  they 
would  not  intend  it  here,  though  it  be  after  verdict;  wherefore  judgment  was 
ai  rested."  The  learned  editor  of  Saunders's  Keports,  in  a  note  upon  this 
case,  shows  a  clear  distinction  between  the  liability  of  an  heir  and  an  executor, 
upon  a  promise  to  pay  the  debt  of  the  ancestor  or  testator ;  and  he  there 
brings  together  the  different  cases  on  this  subject. 

Upon  the  same  principle  that  a  promise,  in  consideration  of  forbearance  to 
sue  where  there  is  no  cause  of  action,  is  void,  it  has  been  determined,  that 
where  a  married  woman  gave  a  promissory  note  as  a  feme  sole,  but  after  her 
husband's  death  promised  to  pay  it  in  consideration  of  forbearance  to  sue,  no 
action  lies  on  such  a  promise  ;  because  the  note  being  void,  no  cause  of. action 
existed  against  her  at  the  time  of  making  the  promise,  (r)  So,  if  an  infant 
enters  into  an  obligation  for  a  certain  sum  of  money,  and  afterwards  the  obli- 
gee brings  debt  upon  the  obligation,  and  procures  a  latitat  to  arrest  him,  and 
the  obligor  being  of  full  age,  and  having  notice  thereof,  comes  to  the  obligee, 
and  says  to  him,  that  if  he  would  not  arrest  him  he  would  pay  him  the  money, 
this  is  not  any  consideration  to  maintain  an  action,  inasmuch  as  the  infant  mi^ht 
have  avoided  the  obligation  by  plea,  (s)  Again,  if  an  infant  takes  up  certain 
commodities  of  a  mercer  in  London,  at  a  certain  price,  who  afterwards,  for 
non-payment  of  the  money,  threatens  to  sue  him,  and  the  mother  of  the  infant 
promises  to  pay  him  if  he  will  not  sue  her  son,  this  is  not  any  consideration   to 


(r)   1  Stra.  94.  2.  Cro.  Elii.  700.  But  see  Dy.  272.  b.    roarff. 

(s)   1  Rol.  Abr.  18.  1.  50.   1.  Danv.    46.   pi.     Cro.  Eliz.  127   1  Leon.  1)0.  contra. 

28  «218 


218  Of  a  Guarantee  or  Promise  to  be  Answerable  [Part  II- 

maintain  the  action,  inasmuch  a3  the  infant  was  not  by  law  chargeable  for  the 
money,  (t)  So,  if  A.  be  indebted  to  B.  by  bill,  and  B.  is  indebted  to  C,  and 
B.  in  recompence  of  his  debt  due  to  C.  assigns  the  bill  of  A.  to  him,  and,  be- 
fore the  day  of  payment  of  the  money,  A.  comes  to  C.  and  promises  him  that 
if  he  will  forbear  him  the  payment  of  the  money  for  a  week,  that  then  he  will 
pay  him  ;  upon  which  C.  forbears  him  ;  yet  this  is  not  any  consideration  to 
maintain  an  action  upon  this  promise  ;  because,  notwithstanding  the  assign- 
ment of  the  bill,  yet  the  property  of  the  debt  remained  always  in  the  *assign- 
or.  (w)  But  if  A.  is  indebted  to  B.  in  20/.,  and  thereupon  B.  makes  a  letter 
of  attorney  to  C.  to  put  him  in  suit,  and  to  recover  the  debt  to  his  own  use, 
and  to  release  it  at  his  pleasure,  and  after  A.,  in  consideration  that  C.  will  for- 
bear to  sue  him  for  a  certain  time,  promises  C.  to  pay  the  debt,  this  is  a  good 
consideration  ;  for  the  forbearance  of  the  suit  whereof  he  had  power  is  a  meri- 
torious consideration,  (v) 

So,  an  action  of  assumpsit  will  lie  upon  a  promise  to  pay  money  in  conside- 
ration of  discharging  a  debt,  or  giving  up  securities.  Thus,  if  A.  be  indebted 
to  B.  in  200/.  and  A.  appoints  B.  to  receive  it  from  C,  and  for  the  better  satis- 
faction of  B.,  A.  delivers  certain  bills  of  exchange  to  one  D.,  the  factor  of  B., 
for  payment  thereof;  and  upon  this  C.  promises  B.  that  in  consideration  that 
he  would  deliver  to  him  the  said  bills  of  exchange,  so  delivered  to  D.,  the 
factor  of  B.,  that  he  would  pay  the  said  200/.  due  by  A.  to  B.  this  is  a  good 
promise,  for  the  consideration  is  valuable  ;  for  though  C.  can  do  nothing  with 
the  bills,  being  a  stranger  to  them,  yet  it  may  be  some  advantage  to  him  to 
have  the  possession  of  them,  at  least  it  may  be  some  prejudice  to  B,,  and 
therefore  the  consideration  is  good.(w)  So,  if  L.  be  indebted  to  M.,  and  L. 
delivers  to  M.  certain  goods  to  the  value  of  100/.  as  a  pawn  till  he  pays  him 
the  debt,  and  after  J.  S.  comes  to  M.  and  promises  to  pay  him  the  debt,  in 
consideration  that  he  will  deliver  to  him  the  said  pawn,  upon  which  he  delivers 
it  to  him  accordingly  ;  this  is  a  good  consideration  to  have  an  action  upon  the 
case  against  J.  S.(,r)  And  in  the  case  of  Meredith  v.  Chute,  (y)  which  was  an 
action  of  assumpsit,  wherein  the  plaintiff  declared  that  the  defendant,  in  consid- 
eration that  the  plaintiff,  at  the  special  request  of  the  defendant,  deliberasset  to 
the  defendant  quandam  notam,  by  which  one  Hurst  assumed  to  pay  to  the  plain- 
tiff a  hundred  guineas,  assumed  to  pay  to  the  plaintiff,  &c.  Upon  non  assump- 
sit pleaded,  and  a  verdict  for  the  plaintiff;  it  was  moved  in  arrest  of  judgment, 
that  the  consideration  of  this  promise  was  not  good,  since  it  did  not  appear  that 
Hurst  gave  this  note  to  the  plaintiff  upon  any  good  consideration,  and  conse- 
quently the  said  note  would  be  void,  and  then  the  delivery  of  the  said  note  by 
the  plaintiff  to  the  defendant  would  be  no  prejudice  to  the  plaintiff,  nor  advan- 


(0  Danv.  Abr.  46.  pL  1.  pL  11.  1  Saund.  210.  n. 

(a)   1  Vin.  Abr.  304.  pi.  W.      See  also  1  (w)  1  Daav.50.  pi.  21. 

Saund.  210.  n.  1.     1  RoL   Abr.  20.  L  SO.     1  (r)  1  Danv.  47.  pi.  8. 

Ventr.  154.  Hard.  74.  Moor.  701.  Oro.  Elia.  (y)  2  Lord  Rayin.  75a     Salk.  W.  7  Mod. 


6^3,  1  Rol.  Abr.  26.  1.  30.  \%  S.  C 

(r)  1  Rol.  Abr.  20.  pi.  11.  1  Vin.  Abr.  304. 

■218 


Chap.  2.]     For  the  Debt  or  Default  oj  Another.  219 

tageto  the  defendant.  But  it  was  resolved,  (per  totam  curiam,)  that  this  was 
a  good  consideration  ;  for  though  no  consideration  was  expressed  in  Hurst's 
note,  yet  the  note  being  subscribed  by  Hurst  was  good  evidence  of  debt 
due  from  Hurst  to  the  plaintiff;  and  therefore  the  delivery  of  the  evidence  of 
his  debt  to  the  defendant  at  his  request  was  a  good  consideration  of  the  assump- 
sit of  the  defendant,  upon  which  this  action  was  brought.  And  *  judgment  was 
given  for  the  plaintiff.  Note,  Holt,  Ch.  J.  said  :  "  That  he  was  of  opinion 
upon  the  trial,  that  it  was  not  necessary  for  the  plaintiff  to  prove  upon  what 
consideration  the  note  of  Hurst  was  given,  the  defendant  having  admitted  it  to 
have  been  given  upon  good  consideration  by  his  promise." 

So,  where  a  broker  having  a  lien  on  certain  policies  of  insurance  effected 
for  his  principal,  for  whom  he  had  given  his  acceptances,  the  defendant  pro- 
mised that  he  would  provide  for  the  payment  of  those  acceptances  as  they  be- 
came due,  upon  the  plaintiffs  giving  up  to  him  such  policies,  in  order  that  he 
might  collect  for  the  principal  the  money  due  thereon  from  the  underwriters  : 
which  was  accordingly  done,  and  the  money  was  afterwards  received  by  the  defen- 
dant :  it  was  held  that  this  was  not  a  promise  for  the  debt  or  default  of  another 
within  the  statute  of  frauds  ;  and  that  the  plaintiff  was  entitled  to  recover  upon 
the  special  promise  or  for  money  had  and  received. (z) 

4.  OF  PROMISES  TO  PAY  A  PRECEDENT  DEBT  ON  THE  CREDITOR'S 
PROVING  IT  DUE  UPON  OATH,  OR  OF  THE  DEBTOR'S  FAILING  TO 
PROVE  PAYMENT. 

It  happens  sometimes  that  when  a  debt  is  disputed,  that  the  debtor,  or  a  third 
person  for  him,  agrees  to  pay  it  in   consideration  of  the  claimant's  proving  it  to 
be  due  by  the  oath   either  of  himself  or  witnesses  before   a  magistrate,  &c. 
Thus,  in  the  case  of  Amie  v.  Andrews,  (a)  which  was  an  action  of  assumpsit, 
wherein  the  plaintiff  declared,  that  whereas  the  father  of  the  defendant   was  in- 
debted to  him  in  20/.  for  malt  sold,  and  promised  to  pay  it ;  that  the  defendant 
in  consideration  that  the  plaintiff  would  bring  two  witnesses  before  a  justice  of 
peace,  who  upon  their  oaths  should  depose,  that  the  defendant's   father  was  in- 
debted to  the  plaintiff,  and  promised   payment,   assumed  and   promised  to  pay 
the  money  ;  then  avers,  that  he  did  bring  two  witnesses,  &c,  who  did  swear, 
&c,  the  defendant  pleaded  non  assumpsit ;  which  being  found  against  him,  he 
moved  in  arrest  of  judgment,  that  the  consideration  was  not  lawful ;    because 
a  justice  of  peace  not  having  power  to  administer  an  oath  in  this  case,  it  is  an 
extrajudicial  oath,  and  consequently  unlawful.     And  Vaughan  was   of  opinion, 
that  every  oath  not  legally  administered  and  taken,  is  within  the  statute  against 
profane  swearing ;  and  he  said  it  would  be  of  dangerous  consequence  to  coun- 
tenance these  extrajudicial  oaths,  for  that  it  would  tend  to  the  overthrowing  of 
legal  proofs.      Wyndham  and   Atkins  thought  it  was  not  a  profane  oath,  nor 


(*)   Castling  v.. iubert,  ante  198. 325.  Hard.         («)  1   Mod.  166.  Cro.  Eliz.  469    470      1 
7d"  Danv.  45.  pi.  24.  S.  P. 


'220 


22 1   Of  a  Guarantee  or  Promise  to  be  Answerable  [Part  II. 

within  the  statute  of  King  James,  because   it  tended   *to   the  determining  of  a 
controversy.     And  accordingly  the  plaintiff  had  judgment. 

Lord  Chief  Baron  Gilbert  in  his  Treatise  on  the  Law  of  Evidence (b),  in  cit- 
ing this  case,  says,  "  That  the  oath,  though  extrajudicial,  and  though  thejustices 
had  no  authority  in  the  matter,  was  held  good  consideration,  for  the  oath  tend- 
ing to  a  decision  of  the  right,  was  not  held  to  be  contrary  to  the  law  of  God, 
and  therefore  the  parties  might  assume  upon  that  consideration,  but  it  is  not 
such  an  oath  as  the  law  takes  notice  of  to  punish  as  perjury."  And  in  the  case 
of  Brett  v.  Pretyman,{c)  which  was  an  action  of  assumpsit,  wherein  the 
plaintiff  declared,  that  the  defendant  owed  him  15/.,  and  the  defendant  pro- 
mised the  plaintiff  that  if  he  would  procure  W.  to  take  his  oath  in  writing 
that  such  a  sum  was  due,  he  would  pay  it ;  and  the  plaintiff  avers  that  he  did 
procure  the  said  W.  to  take  oath  in  writing  before  a  master  in  Chancery,  yet 
the  defendant  refused  to  pay.  After  several  arguments,  the  Court  adjudged 
this  to  be  a  good  consideration,  and  gave  judgment  for  the  plaintiff;  and  the 
Court  said,  "  Though  the  Master  had  no  power,  as  judge,  to  administer  the 
oath,  yet  it  was  an  oath  in  conscience  and  within  the  meaning  of  the  parties, 
and  made  solely  for  the  deciding  of  a  right." 

So.  where  one  affirmed  that  he  had  paid  a  debt  which  was  demanded  of 
him,  and  promised  that  if  he  could  not  prove  it  in  a  short  time,  he  would  pay 
the  debt,  this  is  a  good  consideration,  and  the  words  "  short  time"  is  to  be  in- 
tended a  reasonable  time  to  make  his  proof,  (d) 

5.  OF  PROMISES  TO  PAY  MONEY,  OR  TO  BE  ANSWERABLE  FOR  THE 
DEBT,  &c.  OF  ANOTHER,  ON  DELIVERING  UP  GOODS  TAKEN  IN 
EXECUTION,  OR  UNDER  A  DISTRESS  FOR  RENT,  &c. 

An  action  will  lie  on  a  promise  to  pay  a  precedent  debt,  in  consideration 
that  a  sheriff's  officer  would  restore  goods  taken  in  execution  under  a  fieri  fa- 
cias upon  a  judgment  for  the  same  debt.  (117)  Thus,  in  Love's  case,(c)  the 
sheriff  takes  goods  in  execution  upon  z  fieri  facias  ;  a  stranger  promises  to  the 
officer  to  pay  him  the  debt,  in  consideration  he  would  restore  them.  Upon  demur- 
rer this  was  argued,  and  compared  to  a  consideration  of  suffering  a  prisoner  to  es- 
cape^*) Sed  non  allocatur,  "  for  by  the  capias  he  is  to  take  and  keep  in 
salva  custodia ;  and  to  give  liberty  is  contrary  to  the  writ,  but  that  is  now  to 
raise  the  money,  and  the  sheriff  upon  a  fieri  facias  may  sell  the  goods,  and 
this  is  no  more  in  effect." 

*So,  in  the  case    of  Byne  v.   Playne,{f)  where   the   plaintiff  declared   that 


lb)  4th  ed.  p.  67.  {«)   1  Salk.  23.    Vide  Pullen  v.  Slokes,  i 

(c)   1    Sid.'  2*83.     2  Keb.  26.  44.     Raym.  H.  Black.  312. 
153.  S.  C.  Perkins  v.  Binke,  2  Sid.  123.  S.  P.         (*)  Vide  post.  223. 

(rf)   1  Danv.  52.  pi.  30.  1  Vin.   Abr.   309.         (/)   1  Via.  Abr.  328.  pi.  1.  Cro.  Lhz.213. 

pi.  30.  S.  C. 


(117)  See  Boyce  v.  Oimiw,  2  M'Cord,  208.     Madden  v.  MCray,  1  M'Cord,  486.  Jdkinson 
y.  Barfield,  Id.  575. 


221   *222 


Chap.  2.]       For  the  Debt  or  Default  of  Another.  222 

he  had  recovered  against  W.  20/.  in  the  court  of  S.,  and  had  a  levari  facias  to 
the  bailiff  there,  to  make  execution  of  the  goods  of  W. ;  and  whereas  he  was 
ready  so  to  do,  the  defendant  promised  the   plaintiff,  that   in  consideration  he 
would  deliver  the    defendant   the   said    goods,  he,  within    fourteen    days    after 
Michaelmas,  would   pay  the    plaintiff  the   20/.    or  otherwise   re-deliver  to  the 
plaintiff  the  said  goods,  if,  in  the  mean  time,  no  other  makes  title  to  them,  and 
proves  them  to  be  his  own  goods  (and  averred  that   none  made  title   to   them 
within  that  time.)     A  special   verdict  found   the    recovery  and  assumpsit ;  but 
further,  that  before  the  recovery,  W.  was  possessed  of  those  goods,  as  his  own 
proper  goods,  and  by  indenture  sold  them  to  R.,  his  brother,  for   money,  with  a 
promise  that  W.  notwithstanding  should  have  the  possession  for  four  years,  not 
yet  expired,  he   to  pay  to  R.  20a\  a  year ;  and  that  if  the  said  W.,  at  the  end 
of  the  four  years,  should  repay  the  said  money,  the   sale   should  be  void ;  and 
that  the  said  R.  made   title  to  the  said  goods  by  virtue  of  that  sale,  this  is  a 
good    promise,    though  W.    had    only  a  special  property   in  these    goods,  and 
though  they  were  not  liable  to  the  execution  ;  for  the  plaintiff  having  the  pos- 
session of  the  goods,  his  delivery  of  them  to  the  defendant  is  a  good  consider- 
ation ;  and  judgment  was  given  for  the  plaintiff. 

So,  where  a  landlord  is  about  to  distrain  the  goods  of  his  tenant  for  arrears 
of  rent,  and  a  third  person  promises,  in  consideration  that  the  landlord  would 
desist  from  distraining,  he  would  pay  the  arrears,  this  is  a  good  consideration, 
and  the  promise  need  not  be  in  writing.(118)  Thus,  in  the  case  of  Williams 
v.  Leper,  (g)  one  Taylor,  a  tenant  to  the  plaintiff,  being  three-quarters  of  a 
year  in  arrear  for  rent,  (which  amounted  to  45/.)  and  being  insolvent,  convey- 
ed to  his  creditors  all  his  effects,  for  the  benefit  of  his  creditors.  They  em- 
ployed Leper,  the  defendant,  as  a  broker,  to  sell  the  effects  ;  and  accordingly 
he  advertised  a  sale.  On  the  morning  of  the  sale,  Williams,  the  landlord, 
came  to  distrain  the  goods  in  the  house.  Leper,  having  notice  of  trie  plain- 
tiff's intention  to  distrain  them,  promised  to  pay  the  said  arrear  of  rent,  if  he 
would  desist  from  distraining ;  and  he  did  thereupon  desist.  The  ques- 
tion was,  whether  the  action  could  be  maintained,  the  promise  not  being  in 
writing. 

The  Court  resolved,  that  the  action  was  maintainable,  the  case  not  being 
within  the  statute  of  frauds  and  perjuries  ;  and  Lord  Mansfield  Ch.  J.  said, 
11  The  landlord  had  a  legal  pledge.  He  enters  to  distrain :  he  has  the  pledge 
in  his  custody.     The   defendant  agrees, 'that  the  goods  shall  be  sold,  and    the 

(g)  3  Bur.  18S6.  et  vide  ante,  197. 


(118)  Where  a  landlord  distrained  the  goods  of  his  tenant,  for  rent  in  arrear,  and  a  third 
person  executed  an  agreement  on  the  hack  of  the  inventory  of  the  poods,  by  which  he 
"promised  to  deliver  all  the  goods  contained  in  the  inventory,  to  the  landlord,  in  six  days 
after  demand,  or  pay  him  450  dollars"  being  the  amount  of  "rent  in  arrear  ;  held,  that  this 
was  an  original  and  not  a  collateral  undertaking  ;  and  of  course,  the  consideration  for  the 
promise  need  not  be  expressed  in  the  writing,  hlingerland  v.  Murse,  7  J.  R.  463.  See  notes 
(a)  and  (&).  Id.  464. 


222  Of  Agreements  made  with  Sheriffs*  Officers,fyc>[  Part  II. 

plaintiff  paid  in  the  first  place.'  The  goods  are  the  fund :  the  question  is  not 
between  Taylor  and  the  plaintiff.  *The  plaintiff  had  a  lien  upon  the  goods-; 
Leper  was  a  trustee  for  all  the  creditors,  and  was  obliged  to  pay  the  landlord, 
who  had  the  prior  lien.  This  has  nothing  to  do  with  the  statute  of  frauds  :  it  is 
rather  a  fraud  in  the  defendant  to  detain  the  45/.  from  the  plaintiff,  who  had  an 
original  lien  on  the  goods." 

6.  OF  AGREEMENTS  MADE  WITH  SHERIFFS'  OFFICERS  UPON  THE  AR- 
REST OF  A  THIRD  PERSON,  EITHER  TO  PUT  IN  BAIL,  OR  TO  PAY 
THE  DEBT,  &c.  IN  CONSIDERATION  OF  LETTING  THE  DEFENDANT 
OUT  OF  CUSTODY,  &c. 

A  promise  to  a  gaoler  to  pay  the  plaintiff's  debt,  in  consideration  that  he,  the 
gaoler,  would  suffer  a  defendant,  who  was  in  execution,  to  go  at  large,  is  void. 
Thus,  in  the  case  of  Marty n  v.  Blithman(h),  the  case  was  as  follows :  Dr. 
Hohnan  was  in  execution  in  Plymouth  for  31/.  at  the  suit  of  D.,  which  was  re- 
covered there,  before  the  mayor,  &c.  Blithman  came  to  the  gaoler,  Martyn,  and 
promised,  in  consideration  he  would  set  and  suffer  Holman  to  go  at  large,  that 
the  31/.  should  be  brought  into  court  thereby  Holman,  by  such  a  day,  to 
satisfy  D.,  and  that  he  would  save  Martyn,  the  gaoler,  harmless  from  this 
enlargement.  D.  recovered  against  Martyn  on  the  escape,  and  afterwards 
Martyn  brought  an  action  of  assumpsit  against  Blithman  on  his  promise,  and 
it  was  adjudged  against  the  plaintiff;  for  the  consideration  is  against  law,  viz. 
to  suffer  one  in  execution  to  escape. 

So,  an  agreement  in  writing  to  put  in  good  bail  for  a  person  arrested  on 
mesne  process  at  the  return  of  the  writ,  or  surrender  the  body,  or  pay  debt  and 
costs,  made  by  a  third  person  with  the  bailiff  of  the  sheriff,  in  consideration 
of  his  discharging  the  party  arrested,  is  void  by  the  statute  23  Hen.  6.  c.  9. 
Thus,  in  the  case  of  Rogers  v.  Reeves  (i),  which  was  an  action  of  assumpsit, 
the  facts  were  as  follow  :  Richard  Stephens  was  arrested  by  the  plaintiff"  by 
virtue  of  a  latitat,  and  a  warrant  thereon  granted  against  him,  at  the  suit  of  /. 
Torriano,  and  was  discharged  by  the  plaintiff  on  the  following  undertaking  of 
t'le  defendant : 

"  In  the  King's  Bench.  /.  Torriano,  gent,  against  Richard  Stephens.  Re- 
turnable on  Thursday  next,  after  eight  days  of  Saint  Hilary.  Damages  40/.  ; 
bail  for  35/.  7s.  Theakstone,  by  Evans,  attorney.  I  do  hereby  undertake  to 
put  in  good  bail,  on  or  before  the  return,  or  surrender  the  body  to  Mr.  S.  Rog- 
ers, one  of  the  officers  to  the  sheriff  of  Surrey,  or  on  default  pay  debt  and  costs. 
Dated  24th  of  December  1782.    <S.  Reeve:"1 

The  plaintiff  was  afterwards  compelled  to  pay  to  the  said  J.  Torriano  44/. 
for  debt  and  costs,  by  virtue  of  an  attachment  issued  against  the  #sheriff.  The 
Court  determined  that  this  undertaking  was  void  by  the  stat.  23  Hen.  6.  c.  9., 
and  that  no  action  could  be  maintained  upon  it. 

(h)  Yelv.  197.  ({)  i  Term  Rep.  419. 

#223  *224 


Chap.  2.]   What  Acts  will  Discharge  a  Guarantee.        224 

7.  WHAT  ACTS  OR  CIRCUMSTANCES  WILL  DISCHARGE  A  GUARANTEE. 

1.  By  extending  the  time  of  credit,  or  by  taking  fresh  securities, 
&c]  It  is  said  to  be  a  general  rule,  in  cases  of  guarantee,  that  if  a  creditor 
gives  time  of  payment  to  his  debtor  without  the  consent  or  knowledge  of  the 
surety,  or  otherwise  varies  the  nature  of  the  security,  the  surety  will  be  discharg- 
ed both  in  law  and  equity. (A;)  Thus,  in  the  case  of  Nisbit  v.  S?nith(l) which 
was  a  bill  filed  for  an  injunction  to  stay  proceedings  upon  a  bond,  and  it  ap- 
peared that  the  plaintiff  had  joined  one  Maynard  in  a  bond  to  the  defendant  for 
the  debt  of  Maynard ;  Nisbit  afterwards  urged  Stnith  to  sue  Maynard  on  the 
bond,  which  he  did,  and  then  consented  to  give  him  three  years'  time,  without 
the  knowledge  of  Nisbit.  Smith  afterwards  sued  Nisbit  upon  the  bond, 
upon  which  he  applied  for  an  injunction  upon  the  grounds  above  stated.  The 
only  point  made  in  this  case  for  the  defendant  was,  that  under  the  circumstances 
of  the  case  Nisbit  was  to  be  considered  as  a  principal  rather  than  a  surety. 
But  Lord  Chancellor  Thurlow  was  of  opinion  that  he  was  surety  only,  and  de- 
creed a  perpetual  injunction. 

So,  in  the  case  of  Samuel  v.  Howarth,(m)  a  bill  was  filed  in  equity  for  relief, 
and  also  for  an  injunction  against  proceedings  at  law  upon  a  guarantee,  by  which 
the  defendant  had  engaged  to  be  answerable  to  the  plaintiff  for  the  payment  of 
any  goods  which  he  might  supply  to  H.  from  April  1814  to  April  IS  15.  Goods 
were  accordingly  furnished  by  plaintiff  during  that  period  to  H.,  at  certain 
credits,  to  be  then  paid  for  in  bills  at  three  months,  which  were  accordingly 
drawn  upon  H.  by  plaintiff  and  accepted  by  him  for  the  several  amounts. 
These  bills  were  afterwards  renewed  from  time  to  time,  and  the  fresh  bills 
again  renewed  till  June  1816,  when  H.  became  bankrupt,  and  notice  of  action 
given  to  defendant.  It  seems  to  have  been  admitted  in  the  case  that  H. 
could  not  have  paid  at  any  time  ;  and  the  question  was,  whether  defendant 
was  discharged  : 

The  Lord  Chancellor  said,  "  The  rule  is  this,  that  if  a  creditor,  without  the 
consent  of  the  surety,  gives  time  to  the  principal  debtor,  by  so  doing  he  dis- 
charges the  surety  ;  that  is,  if  time  is  given  by  virtue  of  positive  contract 
between  the  creditor  and  principal — not  where  the  creditor  is  *merely  inactive. 
And  in  the  case  put,  the  surety  is  held  to  be  discharged  for  this  reason,  because 
the  creditor  by  so  giving  time  to  the  principal  has  put  it  out  of  the  power  of  the 
surety  to  consider  whether  he  will  have  recourse  to  his  remedy  against  the  prin- 
cipal or  not,  and  because  he,  in  fact,  cannot  have  the  same  remedy  against  the 
principal  as  he  would  have  had  under  the  original  contract.  Now,  in  the  pres- 
ent case,  the   creditor  has  been  supplying  goods  to  the  principal   debtor  from 

(k)  Per  Chamber  Just.  3,Bos.  &  Pul.  366.  jun.  542.  Rees  v.  Bcrrington,  S.  P.,  and  sec 
and  per  Gibbs,  Ch.  J.  Holt's  Rep.  N.  P.  86.    '3  Chitty  on  Commerce,  326. 

(Z)2Bro.  Ch.  Cas.  579.,  cited  in  Es  part©  (m)  3  Mcrivale's  Rep.  272.  See  also  Grant 
Clifford,  6  Ves.  jun.  804.     See  also  2  Vee.     v.  Campbell,6  Dow.  239,   Baehm  v.  Campbeli, 

3  Mo.  15.  8  Taunt.  679. 

*235 


225  What  Jlcts  or  Circumstances  [Part  If. 

time  to  time  upon  a  certain  credit,  the  extent  of  which  not  being  expressly- 
stipulated  between  the  parties,  I  must  take  to  be  credit  given  according  to  the 
usual  course  of  trade.  The  surety  says,  I  will  be  answerable  for  the  amount 
of  such  goods  as  you  shall  furnish  during  the  period  from  the  second  day  of 
April  1814,  to  the  second  day  of  April  in  the  following  year.  It  is  impossi- 
ble for  me  to  hold,  that  this  is  an  engagement  by  which  he  (the  surety)  has 
rendered  himself  liable  for  an  indefinite  time  beyond  the  expiration  of  the  peri- 
od limited  for  the  delivery  of  the  goods.  It  cannot  be  supposed  that  the  plain- 
tiff meant  he  should  continue  liable  after  the  2d  of  April  1815,  so  long  as  the 
defendant  chose  to  renew  the  bills  of  the  principal  debtor.  You  cannot  con- 
tend in  support  of  such  an  extravagant  proposition.  It  has  been  truly  stated 
that  the  renewal  of  these  bills  might  have  been  for  the  benefit  of  the  surety, 
but  the  law  has  said  that  the  surety  shall  be  the  judge  of  that ;  and  that  he 
alone  has  the  right  to  determine  whether  it  is  or  is  not  for  his  benefit.  The 
creditor  has  no  right,  it  is  against  the  fauh  of  his  contract  to  give  time  to  the 
principal,  even  though  manifestly  for  the  benefit  of  the  surety  without  the  con- 
sent of  the  surety." 

2.  By  not  complying  with  the  Terms  of  the  Guarantee.] — The  claim 
as  against  a  surety  is  strictissirni  juris,  and  it  is  incumbent  on  the  party,  to 
whom  the  guarantee  is  given,  and  who  is  enforcing  it  against  the  surety,  to 
show,  that  he  has  strictly  complied  with  the  terms  of  the  guarantee.  And, 
therefore,  if  one  engage  to  guaranty  the  debt  of  another  provided  eighteen 
months'  credit  be  given,  the  creditor  is  not  at  liberty  to  vary  it  by  giving  twelve 
only  ;  and  after  the  expiration  of  six  more  to  call  upon  the  surety  ;  but  the  sure- 
ty in  such  case  would  be  discharged. (n)  And  though  an  undertaking  to  be 
answerable  to  a  given  amount,  for  any  goods  supplied  by  A.  to  B.  is  a  continu- 
ing guarantee  until  revoked  by  the  surety,  yet  if  A.  alters  the  credit  on  which 
he  supplied  the  goods  to  B.,  the  guarantee  is  discharged.  This  was  determin- 
ed in  the  case  of  Bastow  v.  Bennett, (o)  which  was  an  action  upon  the  follow- 
ing guarantee,  signed  by  the  defendant:  "London,  March  7,  1810.  I  hereby 
undertake  and  engage  to  be  answerable  to  the  extent  of  300/.  for  any  tallow  or 
soap  supplied  by  Mr.  Bastow  to  Frame  and  Bennett,  provided  they  shall  neg- 
lect to  pay  in  due  time."  The  plaintiff  immediately  after  *supplied  tallow  and 
soap  to  Frame  and  Bennett  to  a  large  amount,  at  two  months'  credit.  They 
regularly  paid  him  above  300/. ;  but  in  the  summer  of  1810,  they  owed  him  a 
larger  sum,  and  became  considerably  embarrassed  in  their  circumstances.  A 
meeting  of  their  creditors  was  then  held,  at  which  it  was  agreed,  that  the  cred- 
itors should  continue  to  supply  them  with  goods  payable  in  ready  money,  but 
that  the  payments  made  should  be  applied  to  the  old  debts  till  they  were  satis- 
fied. The  plaintiff  opened  a  new  account  with  Frame  and  Bennett  on  this 
footing ;  and  they  afterwards  became  bankrupt,  being  indebted  to  him  for  tal- 
low and  soap  in  the  sum  of  547/.  Ids.     The  balance  of  the  first  account,  how- 

(n)  Per  Lord  Ellenborough,  in  Bacon   v.  (o)   3  Camph.  220. 

Chesney,   1  Stark.  192. 


• 


226 


Chap.  2  ]  Will  discharge  a  Guarantee.  226 

ever,  was  nearly  satisfied.  Lord  Ellenboroitgh  Ch.  J.  said,  "  The  defendant 
here  became  answerable  for  any  soap  or  tallow  supplied  by  the  plaintiff  to 
Frame  and  Bennett.  Without  the  word  any,  it  might  perhaps  have  been  con- 
fi  ned  to  one  dealing  to  the  amount  of  300/. ;  but  as  it  is  actually  worded,  I  am 
of  opinion  it  remained  in  force  while  the  parties  continued  to  deal  on  the  foot- 
ing established  when  it  was  given.  But  I  think  the  goods  supplied  after  the 
new'  arrangement,  were  not  within  the  scope  of  the  guarantee  ;  and  that  the 
defendant  is  only  answerable  for  the  unsatisfied,  balance  of  the  old  ac- 
count." 

So,  if  a  promise  is  made  to  guaranty  a  bill  of  exchange  for  a  certain  sum, 
but  the  creditor  takes  from  the  debtor  a  bill  for  a  much  larger  amount,  it  seems 
doubtful  whether  this  does  not  wholly  discharge  the  surety.(j>) 

3.  Of  the  Discharge  of  a  Guarantee  by  Bankruptcy.]  A  surety,  un- 
der a  guarantee  on  a  bill  of  exchange,  who  is  discharged  by  bankruptcy  from 
his  liability  on  the  bill,  is  also  discharged  from  the  costs  of  an  action  against 
the  principal,  (q) 

4.  Of  the  Discharge  of  a  Guarantee  by  a  fraudulent  Conceal- 
ment of  Facts.]  If  a  creditor  fraudulently  keeps  back  any  material  cir- 
cumstances from  the  surety,  it  may,  perhaps,  be  a  ground  for  discharging  the 
guarantee.  But  if  A.  become  bound  to  B.  for  the  honesty  of  C.,  who  embez- 
zles money,  B.  may  maintain  an  action  on  the  guarantee,  though  three  years 
have  elapsed  without  any  notice  having  been  given  of  the  embezzlement  by  B. 
to  A.,  at  least  if  A.  was  acquainted  with  the  circumstance  from  any  other  quar- 
ter, and  B.  does  not  appear  to  have  concealed,  it  from  him,  fraudulently  or  in- 
dustriously, A.  will  not  be  discharged  from  his  guarantee,  though  B.  appear  to 
have  given  credit  to  C.  for  the  amount  of  the  sum   embezzled,  (r) 

5.  Of  Laches  in  not  giving  Notice,  &c.  to  the  Surety  of  the  De- 
fault MADE  BY  THE  PRINCIPAL  :  AND  OF  THE  Surety's  GIVING  UP  A  COUN- 
TER Security,  he  not  having  heard  from  the  holder  of  the  Guarantee, 
though  written  to  on  the  subject.]  The  laches  of  obligees  in  a  bond  (con- 
ditioned for  the  principal  obligor  to  account  for  *and  pay  over  from  time  to  time 
all  such  tolls  as  he  should  collect  for  the  obligees)  in  not  properly  examining 
his  accounts  for  eight  or  nine  years,  and  not  calling  upon  the  principal  for  pay- 
ment so  soon  as  they  might  have  done  for  sums  in  arrear  or  unaccounted  for, 
is  not  an  estoppel  at  laio  in  an  action  against  the  sureties. (s)  But  where  a 
party  taking  a  security  for  the  fidelity  of  another,  covenants  with  the  surety  to 
act  in  a  certain  way  for  his  protection,  and  omits  so  to  do,  such  omission  shall 
discharge  the  surety  in  equity  ;  and  although  there  be  no  covenant,  yet  it  is  the 
duty  and  implied  undertaking  of  every  man  to  use  due  care  and  diligence  in 
the  investigation  of  the  accounts  of  his  clerks  and  servants.  Thus,  in  the  case 
of  Montagu  v.  Tidcombe,(t)  the  plaintiff's  testator   had  put  his  son  apprentice 


(p)  See  Phillips  v.  Jlsttingj  2  Taunt.  211.  (s)  Trent  Navigation  Company  v.   Harhy, 

(q)  Botomleii  v.   Wilson,  3  Stark.   148.  10  East  Rep.  34. 

(r)  Peel  v.  Tallock,  1  Bo9.  <$-  Pul.  413.  (/)  2  Vern.  513. 

29  *227 


227  What  Acts  or  Circumstances  [Part  II. 

to  the  defendants,  and  given  bond  for  his  fidelity,  and  at  the  same  time  had  tak- 
en a  covenant  from  the  defendants,  that  ihey  should  see  the  apprentice  make 
up  his  cash  monthly.  The  defendants  did  not  do  this,  and  money  having  been 
embezzled  by  the  apprentice,  ihey  brought  an  action  upon  the  bond.  But  upon 
an  application  to  the  Court  of  Chancery,  the  defendants  were  enjoined  from  re- 
covering more  than  the  defendants  could  prove  the  apprentice  had  embezzled 
in  the  first  month  after  the  embezzlement  began. 

If,  however,  a  surety  is  induced  to  give  up  a  counter  security,  in  conse- 
quence of  not  having  received  an  answer  from  the  creditor  to  an  application 
made  by  him  to  know  whether  he  had  executed  the  order  or  not,  it  is  no  bar  to 
an  action  upon  his  own  guarantee.  Thus,  in  the  case  of  Oxley  v.  Young, (u) 
where  A.  having  sent  an  order  to  B.  for  certain  goods,  C.  undertakes  to  guar- 
antee payment  to  B.  upon  an  undertaking  of  D.  to  indemnify  C.  B.  accord- 
ingly informs  C  that  the  goods  are  preparing,  and  afterwards  ships  them  for 
A.  without  giving  notice  to  C.  that  they  are  shipped.  Afterwards  D.  desires 
to  recal  his  indemnity,  upon  which  C.  writes  to  B.  to  know  whether  he  had 
executed  the  order,  to  which  no  answer  is  given  by  B.  for  a  considerable  time, 
he  having  gone  abroad  in  the  interim ;  upon  this  C.  supposing,  from  the  silence 
of  B.,  that  the  order  was  not  executed,  gives  up  his  indemnity  to  D. :  C.  how- 
ever still  remains  liable  to  B.  on  his  guarantee. 

8.  OF  THE  APPLICATION  OF  PAYMENTS  MADE  BY  A  DEBTOR   TO   HIS 
CREDITOR,  WHILST  A  GUARANTEE  IS  IN  FORCE. 

Where  a  party  has  guaranteed  the  payment  of  a  particular  supply  of  goods 
to  a  third  person,  and  after  the  debt  has  accrued,  other  transactions   and  deal- 
ings continue  between  the  creditor  and  the  debtor ;  and  in  the    course  of  such 
dealings,  the  latter  makes  payments  on  account  generally,   the  creditor  will  be 
at  liberty  to  apply  such  payments  in  discharge  *of  the  debt  subsequently  con- 
tracted, and  is  not  obliged  to  apply  them  in  discharge  of  the  guarantee  ;  for  the 
general  rule  of  law,  to  be  collected  from  the  cases  on  this  subject,  is,  that  where 
a  debtor  pays  money  without  specifying,  at  the   time  of  payment,  on  what  ac- 
count it  is  paid,  it  is  in  the  power  of  the  creditor  to  apply  it  to  whatever  account 
he  pleases  ;  but  where   it   is  applied   to   a   particular  account  by  the  creditor, 
which  is  communicated  to  the  debtor,  he  cannot   afterwards   alter   the  applica- 
tion, so  as  to  accommodate  it  to  particular  circumstances,  (w)       But    in  a  late 
case  it  was  said,(.r)   "  that  if  the   receiver  does   not,  at  the  time  of  payment, 
make  a  specific  application  of  it  to  a  particular  account,  he  would  have  a  right 
to  make  the  application  at  a  subsequent  period  :  and   though  an  entry  of  such 
payment  may  be  made  to  a  particular  account  in  the  private  book  of  the  receiv- 
er, not  communicated   to  the  debtor,  such  election  is  not  complete ;  for  the  ef- 


(u)  2  H.  Bl.  613.  2  Stra.  1 194.     2  Barn.  &  Cres.  45.    Per  Bey- 

(w)   1  Taunt.  564.  5  Taunt.  596.  6  Taunt,     ley  Just. 
5©7.   14  East  Rep.  243.  a.  a.  6  Esp.  Rep.  26.         (x)  Per  Holroyd,  Juet.  m  Simpson  v.  tng- 

ham.    2  Barn.  &  Cres.  74. 

*238 


Chap.  2.]  Will  discharge  a  Guarantee.  228 

feet  of  making  such  an  entry  shows  only  that  the  idea  of  so  applying  the  pay- 
ment had  passed  in  his  own  mind,  and  is  much  the  same  thing  as  if  he  had  ex- 
pressed to  a  stranger  his  intention  of  making  such  application  of  the  payment, 
and  had  afterwards  refused  to  carry  such  intention  into  effeet.  But  the  delive- 
ry of  an  account  to  the  party  making  the  payment,  and  giving  credit  in  that 
account  for  the  money  received,  is  a  conclusive  election,  and  such  as  will  bind 
the  receiver. 

So,  if  at  the  time  of  giving  the  guarantee,  the  principal  was  indebted  to  the 
creditor  upon  a  prior  account,  the  latter  may  apply  subsequent  payments  to  the 
liquidation  of  the  pre-existing  debt,  although  the  surety  had  no  intimation  of  such 
pre-existing  debt,  (y)     But,  if  from  circumstances   attending  such  payments,  it 
appears  that  some  of  them  must  have  been  made  to  meet  the  subsequent  ad- 
vances of  money,  or  supply  of  goods,  such   circumstances,  in  the   absence  of 
other  proof,    are  sufficient   to   raise    a   reasonable   inference,    that    they  were 
all  so  intended  ;  and  particularly  in  favour  of  a    surety.       Thus,   in  the  case 
of  Marryatts   v.    White,{z)     where   the    defendant   had  given    a   promissory 
note  to  the  plaintiff  as    a   security   for  the  amount  of  flour  to  be  delivered  to 
one  Moulds,  who  at  that  time   was  considerably  indebted  to  the  plaintiff  on 
account  of  prior  dealings,  which  was,  however,  known  to  the  defendant.     Sub- 
sequent deliveries  of  flour  were  made  at  three  months'  credit,  which  was  the 
usual  time  of  credit,  amounting  in  the  whole  to  239/.    16s.   2d.,   and  subse- 
quent payments  were  made  by  Moulds  amounting  to  209/.  18s.  It  was  proved, 
that  a  discount  had  been  allowed  for  immediate  payments,  and   that  Moulds 
had  in  other  instances  *made  payments  before  the  expiration  of  the  credit,    up- 
on which  discount  was  also  allowed.     And  the   question    was,    whether    these 
payments  were  to  go  in  liquidation  of  the  old  or   new  account.     Upon   which 
Lord  Ellcnborough,  Ch.  J.  said,  "  I  think  that  in  favour  of  a  surety,  such  pay- 
ments are  to  be  considered  as  paid  on  the  latter  account.     In  some    instances 
the  payments  were  immediate,  and  in  others  before  the  time  had  expired,    with- 
in which  a  discount  was  allowed,  ex  plurimis  disce   omnes  ;  where  there  is    no- 
thing to  shew  the  animus  solventis,  the  payment  may   certainly  be    applied  by 
the  party  who  receives  the   money.     The    payment   of  the    exact    amount    of 
goods  previously  supplied  is  irrefragable  evidence  to  show   that  the    sum    was 
intended  in  payment  of  those  goods  ;  and  the  payment  of  the  sums    within   the 
time  allowed  for  discount,  and  on  which  discount  has  been  allowed,    affords    a 
strong  inference,  in  the  absence  of  proof  to  the  contrary,  that  it    was  made    in 
relief  of  the  surety/' 

9.  OF  NOTICE  TO  A  SURETY  OF   DEFAULT   MA'DE  BY  THE  PRINCIPAL. 
Upon  default  made  by  the   principal,  the  surety  should,  in   all  cases,    have 


(y)   Kirbyv.   Th»  Duke  of  Marlborough,  1         (z)  2  .Stark.  101. 
Maule  &  Sel.  18. 


*3*0 


/ 


229  What  Jlcls  or  Circumstances  [Part  II. 

immediate  notice  thereof;  but  particularly  where  a  guarantee  is    given    for  the 
price  of  goods  which  are  to  be  paid  for  by  the  principal  by  a  bill  of  exchange, 
which  is  afterwards  dishonoured  ;  in  which  case,  notice  of  its   dishonour   must 
be  given  both  to  the  drawer  and  guarantee.     This  was  determined  in  the  case 
of  Phillips  v.  Astling,  (a)   which  was  an  action  against  two  upon  a  guarantee, 
the  terms  of  which  were  :  Memorandum.—"  We  jointly  and   separately   pro- 
mise to  guaranty  a  payment  of  500/.    at  5/.   per  cent.,  say  a  bill,    dated    10th 
January    1808."     The    bill  was  given,  dated   llth   January,  and  accepted; 
and  not  having  been  paid,  this  action  was  brought.     At  the  trial,  there  appear- 
ed reason  to  believe  that  Davenport  and  Finney,  the  drawers,  and  Houghton,  the 
acceptor,  were  all  at  this  time  insolvent,  but  there  was  no  proof  of  it.     Daven- 
port and  Finney  first  became  plainly  insolvent  in  February  1809,   a  year    after 
this   bill  was  drawn.     There    was  no  evidence   of  any  demand  having  been 
made  on  Davenport  and  Finney  for  the  money  ;  and  no  notice   -was  given  them 
of  the  dishonour  of  the  bill  till  the  16th.     Something  was  said  of  a  threat    to 
arrest  them,  but  there  was  no  evidence  of  a  regular  notice.     As  to  Houghton, 
he  went  abroad ;  but  he  left  a  sister  here,  of  whom  a  demand  might  have  been 
made  ;  no  demand,  however,  was  made  at  the  place  where  his  sister  was  to  be 
found.     The  court  determined,  that  notice  of  the  dishonour  of  the   bill  should 
have  been  given  to  the  drawer   and  to  the  defendant.     And   Mansfield  Ch.  J. 
said,  "  At  *the  trial  it  was  objected  that  the  plaintiff  could  not  recover  for  seve- 
ral different  reasons  ;  first,  that  the  defendants   stood  as  indorsers  of  the  bill, 
and  that  as  indorsers  they  had  a  right  to  insist  on   proof  of  the  notice  of  non- 
payment, both  by  the  drawer  and  acceptor.     On  the  other  hand  it  was  urged, 
and,  as  we  think,  justly,  that  this  was  a  general  guarantee  for  payment  of  a  bill ; 
not,  as  usual,  a  guarantee  that  the  acceptor  should  pay,  but  a  contract  that  ei- 
ther the  one  or  the  other  should  pay ;  and  the  consequence  is,  that  if  the  guar- 
antee paid  the  bill,  he  would  have  a  right  to  come  both  on  the  drawer  and  accep- 
tor for  re-payment ;  and  though  want  of  notice  would  not  discharge  the  accep- 
tor, yet  the  guarantee,  as  the  holder,  had  a  right  to  insist  on  due  notice  being 
given  to  himself  of  non-payment  by  the  acceptor ;  and  that  as  to  the  drawers 
he  had  right  to  insist  on  notice  being  given  to  them  of  the  same  fact,  for  that 
otherwise  he  might  pay  it  in  his  own  wrong  if  they  were  discharged." 

But  in  the  case  of  Holbrow  v.  Wilkins  (b)  where  the  plaintiffs  sold  goods 
to  C.  and  P.,  and  took  their  acceptance  for  the  amount,  half  of  which  was 
guaranteed  by  the  defendant.  Before  the  bill  became  due  C.  and  P.  became 
insolvent,  of  which  the  defendant  was  then  informed,  and  also  that  the  plain- 
tiffs looked  to  him  for  the  sum  which  he  had  guaranteed :  the  Court  of  King's 
Bench  determined,  that,  under  these  circumstances,  it  was  unnecessary  for  the 
plaintiffs  to  present  the  bill  when  due,  or  give  the  defendant  notice  of  the  non- 
payment of  it.  Abbott  Ch.  J.  said,  "  This  case  differs  very  materially  from 
that  of  Phillips  v.  Astling :  the  insolvency  there  did  not  happen  until   after  the 


(a)  2  Taunt.  206.  (&)   1  Bam.  &Cres.  10. 

*230 


Chap.  2.]         Will  discharge  a  Guarantee.  230 

bill  became  due :  but  in  the  present  case,  the  defendant  had  notice  long  prior  to 
the  bill  becoming  due  that  C.  and  P.  were  insolvent,  and  that  the  plaintiffs 
would  look  to  him  for  payment."(119) 


(119)  A.,  in  consideration  of  the  delay  of  an  execution  against  B.,  by  the  creditors  for 
a  certain  time,  promised,  in  writing,  that  B.  should  make  his  appearance  at  a  certain  place 
at  the  time  specified,  either  to  pay  the  execution,  or  to  surrender  himself  to  any  officer  who 
might  hold  the  same  at  the  time ;  and  on  failure  of  B.  to  appear,  as  above  stated,  to  pav  the 
amount  of  the  execution,  with  interest.  B.  failed  to  appear,  at  the  time  and  place  specified  : 
In  an  action  against  A.  for  the  non-performance  of  his  agreeme/it,  it  was  held  to  be  unnec- 
essary for  the  plaintiffs  to  aver  notice  to  the  defendant,  that  B.  did  not  appear  at  the  time  and 
place  specified,  and  a  special  request  to  the  defendant  to  pay  the  money  before  suit  brought ; 
because,  the  non-appearance  of  B.  was  a  subject  equally  within  the  knowledge  of  the  plain- 
tiffs and  defendant ;  and  as  to  the  special  demand  of  the  money,  the  payment  of  which 
became  a  present  duty,  the  general  averment  of  licet  saepius  requisilus,  especially  after  verdict, 
was  sufficient.     Lent  v.  Padelford,  10  Mass.  Rep.  230. 


/ 


231      Of  Contracts  for  Services  and  Work;  and  [Part  II. 


*  CHAPTER    III. 


OF  CONTRACTS  FOR  SERVICES  AND  WORKS  :  AND  OF  THE  STATUTE 
OF  FRAUDS  RELATING  TO  AN  UNDERTAKING  WHICH  CANNOT  BE 
PERFORMED  WITHIN  A  YEAR. 

If  a  person  is  employed  to  do  or  transact  any  business  or  employment  for 
another,  and  it  is  expressly  agreed  between  the  parties  that  it  shall  be  completed 
for  a  particular  sum  of  money ;  and  the  work  is  finished  accordingly,  an  action 
of  indebitatus  assumpsit  will  lie  for  the  money  so  agreed  to  be  given  :  but  if  no 
express  agreement  be  entered  into,  as  to  the  sum  to  be  paid,  the  law  will  imply 
that  the  employer  undertook  or  assumed  to  pay  the  person  employed  so  much 
as  his  labour  reasonably  deserved ;  and  upon  this  implied  promise  an  action  of 
assumpsit  on  a  quantum  meruit  will  lie.  So,  where  a  person  is  employed  to 
do  or  perform  some  particular  work,  or  professional  business  for  hire,  the  law 
implies,  that  the  person  so  engaged  not  only  undertakes  to  do  the  work,  &c. 
but  also  to  use  all  due  diligence,  skill,  and  attention  in  the  execution  thereof; 
so  that  if  he  either  refuses  to  do  or  complete  the  work,  or  does  it  in  an  unskil- 
ful and  improper  manner,  he  will  be  liable  to  an  action  of  assumpsit,  at  the 
suit  of  the  employer,  for  the  amount  of  the  damages  which  he  may  sustain  in 
consequence  thereof.  And,  when  one  man  engages  either  to  serve  or  employ 
another  for  hire,  but  afterwards  refuses  so  to  do,  he  is  liable  to  the  same  kind 
of  action. 

But  where  an  agreement  is  made  for  any  work  or  service,  and  it  is  either 
expressly  agreed,  or  by  necessary  implication  understood,  that  the  party  shall 
have  more  than  a  year  to  perform  it,  such  agreement  must  be  reduced  into 
writing ;  for  by  the  last  branch  of  the  4th  clause  of  the  statute  it  is  enacted, 
u  That  no  action  shall  be  brought  to  charge  any  person  upon  any  agreement 
that  is  not  to  be  performed  within  the  space  of  one  year  from  the  making 
thereof,  unless  the  agreement  upon  which  such  action  shall  be  brought,  or  some 
memorandum  or  note  thereof,  shall  be  in  writing,  and  signed  by  the  party  to 
be  charged  therewith,  or  some  other  person  thereunto  by  him  lawfully  author- 
ised." 

*Now  upon  this  clause  of  the  statute  it  has  been  holden,  that  if  no  time  be 
stipulated  for  the  performance  of  the  agreement,  and  it  is  capable  of  being  per- 
formed within  a  year  from  the  making  thereof,  it  is  not  within  the  statute, 
though  it  be  not  actually  performed  till  after  that  period.  Thus,  where  a  parol 
promise  was  made  to  pay  so   much  money  upon  the    return  of  such   a   «hip, 

*231   *232 


Chap.  3.]    Of  the  Statute  of  Frauds  Relating  thereto.    232 

which  ship  happened  not  to  return  within  two  years'  time  after  the  making  of 
the  promise :  It  was  made  a  question  before  all  the  judges  whether  this  prom- 
ise was  void  by  the  statute  of  frauds.  They  were  of  opinion  that  it  was  a 
good  promise,  and  not  within  the  fourth  clause  of  the  statute,  for  that  by  possi- 
bility the  ship  might  have  returned  within  a  year ;  and  though  by  accident  it 
happened  not  to  have  returned  so  soon,  yet,  they  said,  that  clause  of  the  stat- 
ute extends  only  to  such  promises,  where,  by  the  express  appointment  of  the 
party,  the  thing  is  not  to  be  performed  within  a  year.(a)(120) 

So,  in  the  case  of  Peter  v.  Compton,{b)  which  was  an  action  upon  a  parol 
agreement,  by  which  the  defendant  promised,  in  consideration  of  one  guinea,  to 
give  the  plaintiff  so  many  on  the  day  of  his  marriage. — And  the  question  up- 
on the  trial,  before  Holt  Ch.  J.,  was  whether  such  agreement  ought  to  be  in 
writing,  for  the  marriage  did  not  happen  within  a  year :  the  Chief  Justice  ad- 
vised with  all  the  judges,  and  by  the  great  opinion  (for  there  was  a  diversity  of 
opinion,  and  his  own  was  e  contra)  where  the  agreement  is  to  be  performed  up- 
on a  contingency,  and  it  does  not  appear  in  the  agreement,  that  it  is  to  be  per- 
formed after  the  year,  there  a  note  in  writing  is  not  necessary,  for  the  contingen- 
cy might  happen  within  the  year  ;  but  where  it  appears  by  the  whole  tenor  of 
the  agreement,  that  it  is  to  be  performed  after  the  year,  there  a  note  is  necessa- 
ry; otherwise  not. 

So,  in  the  case  of  Fenton  v.  Emblers,  executor  of  May,(c)  where  the  promise 
was  stated  in  the  declaration  thus :  "  That  William  May,  the  defendant's 
testator,  in  consideration  that  the  said  Sarah  (the  plaintiff)  would  be  and 
become  the  housekeeper  and  servant  of  the  said  William,  and  take  upon  herself 
the  care  and  management  of  his  family,  &c,  and  perform  the  same  as  long  as 
it  should  please  the  said  William  and  Sarah,  undertook  and  promised  to  pay 
wages  to  the  said  Sarah,  at  and  after  the  rate  of  6/.  for  one  year ;  and  also 
by  his  last  will  and  testament,  to  give  and  bequeath  to  the  said  Sarah  a 
legacy  or  annuity  of  16/.  by  the  year,  to  be  paid  to  her  yearly,  &c. ;  and 
that  the  said  Sarah,  confiding  in  the  said  promise,  entered  into  the  said 
testator's  service,  and  became  his  housekeeper,  &c.  and  continued  so  for  three 
years  and  59  days  ;  but  that  the  said  William  had  not  *performed  his  said 
agreement,  and  did  not  leave  her  such  legacy  or  annuity,  &c.  And  it  appear- 
ed upon  the  evidence  that  there  was  such  an  agreement  between  the  said  Wil- 
liam May  and  the  plaintiff,  but  that  it  was  by  parol,  and  not  in  writing.  It 
appeared  also,  that  the  plaintiff  did  enter  into  the  testator's  service,  and  con- 
tinued in  such  service  till  his  decease  ;  but  that  the  testator  did  not  give  her  by 
his  last  will  or  otherwise,  the  said  annuity  of  16/.  per  annum,  or  any  other  an- 
nuity.    An  objection  was  taken  upon  the  fourth  section  of  the  statute  of  frauds, 

(a)  Anonymous  Case,  1  Salk.  280.  Comb.  463.  Skin.  326.  S.  P. 

(6)  Skin.  353.  Holt.  326.  S.  C.   See  also         (c)  3  Bui.    1278.   1  Bl.  Rep.  353.  S.   C. 

(120)  The  rules  laid  down  in  the  text,  are  fully  sanctioned  by  the  decision  in  Moort  v. 
Fox,  10  J.  R.  244. 

*233 


233    Of  Contracts  for  Services  and  Works  ;  and  [Part  II. 

that  the  agreement  was  not  to  be  performed  within  the  year.  But  Denniso?i 
Just.,  and  the  rest  of  the  Court,  were  of  opinion,  "  that  the  statute  of  frauds 
plainly  means  an  agreement  not  to  be  performed  within  the  space  of  a  year, 
and  expressly  and  specifically  so  agreed.  That  a  contingency  Avas  not  with- 
in it  ;  nor  any  case  that  depended  upon  a  contingency  ;  and  that  it  did  not  ex- 
tend to  cases  where  the  thing  only  might  be  performed  within  the  year.'' 

An  agreement,    however,    which  is  in  all  events  to   remain   unperformed  for 
more  than  a  year,  is   within  the  statute  ;( 121 )   and  no  parol    evidence   can  be 
given  to  connect  the  signature  of  a   subscription  to  a  literary   work  with  the 
prospectus,  so  as  to  take  the  case  out  of  the   statute.     Thus,  in   the  case  of 
Boydell  v.  Drummond,(d)  which  was  an  action  for  not  accepting  certain  num- 
bers of  a  series  of  large    prints  from  Shakspeare1 's  plays,  which  had  been  pub- 
lished by  the  plaintiff  and  his  late  partner  Alderman  Boydell.     At  the  trial,  it 
appeared,  that  the  first  prospectus    of  the  work  was   published   in  1786,  and  a 
second  prospectus  in  1787.     On  the  1st  of  May  1789,  the  Shakspeare  gallery 
was  opened  in  Pall  Mall,  with  an  exhibition  of  34  large  pictures  then  finished  ; 
and  in  March  1790,  an  additional  number  were  exhibited,   amounting  in   all  to 
56  ;  and  also  specimens  of  the  prints  in  a  state  nearly  ready  for  publication. 
In  April  1790,  the  defendant  became  a  subscriber  to  the  large  prints    (a  splen- 
did edition  of  the  letter-press  of  the  plays,  and  a  series  of  small  prints  to  bind 
up  with  it,    forming  a  distinct  part  of  the  proposed  plan  of  publication.)     The 
defendant's  subscription  was  No.  1103,  the  whole  number  of  subscribers  at  the 
close  having  been  1384.     At   the  time  of  his   subscription,   the  defendant  paid 
his  two  guineas   in  advance,  and  had  a  receipt  given   him   for  the  same.     The 
delivery  of  the  first  number  was  made  in  June  1791,  when  it  was  delivered  to 
the   defendant's  order,  who    thereupon  paid  the  third  guinea,  and  two  more   in 
advance  for  the  next  number.     The  second   number   was   delivered  to   the  de- 
fendant  on  the  29th  of  March  1792,   was   advertised  as  before,  and  the  defen- 
dant also  sent  for  that,  and  paid  his  three  guineas,  two  of  them  in  advance  for 
the  third  number  as  before.     These  numbers  were  delivered  out  at  the  gallery 
in  Pall  Mall,  being  the  place    where    the  defendant    had  subscribed.     Others 
were    delivered    *out  to    other    subscribers     at    Messrs.     BoydelVs    shop  in 
the  city.     After   this  time,  at  least  one   number   was   delivered  to  the  subscri- 
bers in  general  in  every  year,  sometimes  two,  and  in  two  instances  three  within 
a  year,  until  the  whole  were  completed  ;  but  the  defendant  never  sent  for  any 
more  of  the  numbers,  though  he  never  gave   notice  of  his  intention    to  discon- 
tinue  taking  them  in.     Nor  did  the  plaintiff  ever  make  any  particular  demand 
on  the  defendant  to  take  the  remaining  numbers  and  pay  for  them   till  1807, 

(rf)   11  East  Rep.  142. 

(121)  A  parol  agreement  to  sell  the  mere  improvements  made  on  land  is  not,  as  to  the 
subject  matter,  within  the  statute  of  frauds,  and  may  be  enforced  by  an  action  ;  but  where 
the  agreement  was  made  in  January  or  February,  to  pay  for  such  improvements  one  year 
Iroia  March  then  next  following  ;  it  was  held,  that  such  contract  was  within  the  provisions 
of  the  statute.     Lower  v.  Winters,  7  Cowen,  263. 

♦234 


Chap.  3.]  Of  the  Statute  of  Fraud*  relating  thereto*    234 

after  the  whole  work  was  completed  and  published  ;  but  the  rest  of  the  numbers 
as  they  came  out  were  regularly  laid  by  for  him  according  to  the  order  of  time 
of  his  subscription.     The  last  number  was  published  in  1S03,  and  the  number  of 
prints  finally  delivered  to  the  subscribers,  who  sent  for  them,  wras  12  more  than 
the  stipulated  number.     One  of  the  conditions  of  the  prospectus  was,  "  that  one 
number  at  least  should  be  published  annually  ;  and  the  proprietors  were  confi- 
dent they  should  be  enabled  to  produce  two  numbers  within   the  course  of  every 
year."     Printed  copies  of  the  two  prospectuses  were  lying  about  the   shop  for 
public  inspection  at  the  time  of  the   defendant's  subscription,   and   the   general 
practice  was  to  deliver  them   to  subscribers  at  the  time  of  their  subscription. 
But  the  book  in  which   he  subscribed  his  name  had  only  for  its  title — " Shak- 
spcarc  subscribers,  their  signatures,"  without  any  reference  to  either  prospec- 
tus in  the  terms  of  it.     After  the  whole  work   was   completed  and   published, 
an  application  was  made  to  the  defendant  in  August  1806,  and  again  in  March 
1807,  to  take    and  pay    for  the    remaining  numbers   of  his  subscription;  to 
which  latter,  he  returned  an  answer   in   writing,  dated    1st   of  April    1807,   in 
which  he  stated,  that  he  ceased  taking  in  the   numbers   of  the   Boydcll  Shah- 
speare  many  years  ago,  in   consequence   of  the   engagement  not  being  fulfilled 
on  the  part  of  the   proprietors  ;  and  not  having  been  applied  to  from  that  time 
till  very  lately,  he  did  not    consider  himself  called  upon   to    complete  the  set. 
The  receipt  for  the  defendant's  subscription  was  in  this  form  :   "  Received  from 
J.  Drummond  Esquire   one  guinea,  as  the  second  subscription  to  the  first  num- 
ber of  the  Shakspeare  with    large  plates  ;  and   at  the  same  time  received  two 
guineas  as  the  first  subscription  to  the  second  number,  agreeably  to  the  original 
proposals.     (Signed  for  the  plaintiffs.)"     The  Court,  after  argument,  were   of 
opinion  that  this  case  was  within   the  statute.     And  Lord  EUenborough  Ch.  J. 
said,  "  We  are    all  clearly   of  opinion  that  this   was  not  a  contract  which  was 
to  be  performed  within  a  year,  and  ought  therefore  to  have  been  evidenced  by 
writing  signed,  as  required  by  the  statute  of  frauds.      The  whole   scope  of  the 
undertaking  shows  that  it  was  not  to  be  performed  within  a  year  ;  and  if,  con- 
trary to  all  physical  probability,  it  could  have  been  performed  within  that  time, 
yet  the  whole  work  could  not  have  been  obtruded  upon  the  subscribers  at  once, 
so  as  to  have  entitled  the  publishers   to   demand   payment    of  the  whole  sub- 
scription from  them    within  the  year.^It  has   been    argued    that   *an  inchoate 
performance  within  a  year  is  sufficient  to  take  the  case  out  of  the  statute  ;  but 
the  word  used  in  the  clause    of  the  statute  is,  performed,  which  ex  vi  termini 
must  mean  the  complete  performance  or  consummation  of  the   work:   and  that 
is  confirmed  by  another  part  of  the  statute,  requiring  only  part  performance   of 
an  agreement  to  supersede  the  necessity  of  reducing  it  to  writing;  which  shows, 
that  when  the  legislature  used  the  word  performed,  they  meant  a  complete,   and 
not  a  partial  performance.     If  this  were  not  the  true  construction  of  the  statute, 
great  inconvenience  would  ensue  in  the  execution  of  contracts  for  large  works, 
which  must  necessarily   require   a  long  time  for  their  completion  ;  as  in  the 
instance  of  Somerset  House,  which  occupied  many  years  in  the  building.     If 
30  *235 


235        Of  Contracts  for  Services  and  Works.     [Part  II. 

one  stone  were  laid  within  a  year  from  the  making  of  the  contract  by  parol,  it 
would,  according  to  the  argument,  have  taken  the  case  out  of  the  statute,  leav- 
ing the  terms  on  which  the  great  mass  of  it  was  to  be  built  to  fallacious  mem- 
ory alone,  to  be  exercised  at  some  distant  period  ;  which  would  let  in  the  tery 
mischief  which  the  statute  meant  to  guard  against.  Therefore,  to  exclude  per- 
jury, and  to  perpetuate  the  true  terms  of  contracts  which  were  not  to  be  per- 
formed within  a  year,  there  is  no  doubt  that  the  statute  meant  a  consum- 
mate performance  within  that  time.  Now  here,  by  the  very  terms  of  the  con- 
tract, and  clearly  in  the  contemplation  of  the  parties  from  the  whole  scope  of  it, 
it  was  not  to  be  performed  within  a  year;  for  the  agreement  was  to  publish 
at  least  one  number  annually  after  the  delivery  of  the  first,  and  according  to 
the  number  of  the  pictures  to  be  published,  at  the  rate  of  two  from  each  play, 
the  work  would  consist  of  many  numbers.  On  this  ground  the  case  appears  to 
be  clearly  within  the  statute,  and  the  objection  taken  to  the  action  to  be 
well  founded.  I  cannot  connect  the  subscription  of  the  plaintiff's  name  in  the 
book  with  the  prospectus ;  nor  does  the  defendant's  letter  refer  to  the  prospec- 
tus produced  at  the  trial.  It  speaks  indeed  of  his  engagement  with  the  propri- 
etors of  the  Boydell  Shakspeare ;  but  it  cannot  be  shown  to  be  the  engagement 
contained  in  the  particular  prospectus  without  parol  evidence,  which  the  statute 
excludes.  If  there  had  been  a  plain  reference  to  the.  particular  prospectus, 
thatmi^ht  have  helped  the  plaintiff;  but  there  is  nothing  of  that  kind." 

We  will  now  pursue  the  main  subject  of  the  present  chapter,  and  consider  it 
under  two  general  divisions,  namely,  first,  of  services  and  works  done  and  per- 
formed upon  an  employment  or  retainer,  for  which  the  party  employed  is  to  be 
paid  either  a  particular  sum  expressly  agreed  upon  between  the  contracting 
parties;  or,  if  no  fixed  price  be  agreed  upon,  then  upon  an  implied  undertaking 
to  pay  what  is  just  and  reasonable,  and  which  is  technically  termed  a  quantum 
meruit.  And,  secondly,  of  particular  services,  which  divide  themselves  into 
two  classes,  viz.  first,  those  which  are  of  such  a  nature  as  cannot  be  made  the 
subject  of  an  action,  though  the  employer,  who  receives  a  benefit  therefrom, 
•may,  perhaps,  be  bound  in  honour  and  conscience  to  remunerate  the  party  ;  and, 
secondly,  those  services  which  are  performed  voluntarily,  and  with  the  sole 
view  of  being  rewarded  either  by  a  gift,  or  by  a  legacy. 

\ 

1.  of  services  and  works  done  and  performed,  and  to  be 
paid  for  either  at  a  stipulated  price,  or  upon  a  quantum 
mervit. 

The  kind  of  services  and  works  which  are  most  commonly  the  subject  of 
discussion  in  our  courts  of  law,  are  those  which  relate  to  the  building  or  re- 
pairing of  houses,  &.c.  And  upon  contracts  of  this  description,  we  find  it  has 
been  determined,  that  where  a  carpenter  or  builder  agrees  to  erect  any  build- 
ing for  a  particular  sum  of  money,  but  additions  or  alterations  are  afterwards 
made,  the  tradesman  is  bound  by  the  contract,  as  iar  as  it  can  be  traced,  and 
entitled  *o  recover  upon  a  quantum  merutt  for  the  exoe*a  only.     Thus,  in  the 


Chap.  3.]  Of  Contracts  for  Services  and  Works*  £86 

case  of  Pepper  v.  Burland,(e)  which  was  an  action  of  assumpsit  for  work  and 
labour  as  a  carpenter.     The  defendant  proved  that  the   plaintiff  contracted  to 
do  all  the   carpenter's  work  necessary  to  be  done  in  a  house   which  the  defen- 
dant was  building,   for  a  certain  sum.     It   was   admitted    that  the  roof  of  the 
house  had  been  done  in  a  manner  different  from  that  specified  in  the  contract ; 
and  the  defendant  had  paid  money  into  court  sufficient  to  cover  the  excess.     A 
plan  was  produced,  and  proved  by  the  plaintiff,  wherein  the  dimensions  of  the 
house  were  stated  to  be   fifteen  feet ;  but   the  house  on   which  the  work  wa« 
done  was  seventeen  feet.     It  did  not  appear  that  the  plaintiff  had  ever  seen 
this  plan  before  he  began  to  work ;  but  the  house  was  begun  by  the  bricklayer, 
on  the  scale  of  seventeen  feet,  before  any  contract  was  made  with  the  plaintiff. 
Lord  Kenyon  Ch.  J.  said,  "  I  have   often  declared,  and    have  had  the    good 
fortune  to  have  my  opinion   adopted  by  juries,  that  where   some   additions  aro 
made  to  a  building  which  the  workman  contracts  to    finish  for  a  certain  sum  of 
money,  the  contract  shall  exist,  as  far  as  it  can  be  traced  to  have  been    follow- 
ed, and  the  excess  only  paid  for   according  to    the  usual  ^rate    of  charging.     I 
think  that  the  plaintiff  has  failed  in  showing  the  plan  by   which  he  contracted  to 
work  to  be  the  same  as  that  produced.     I  admit  that  if  a  man  contracts  to  work 
by  a  certain  plan,  and  that  plan  is  so  entirely  abandoned  that  it  is  impossible  to 
trace  the  contract,  and  to  say  to  what  part  of  the  work  it  shall   be    applied,  in 
such  case  the  workman  shall  be  permitted  to  charge  for  the  whole  work   done 
by  measure  and  value,  as  if  no  contract  at  all  had   ever  been  made  :  but  in  the 
present  case  the  contract  is  not  proved  to  have  been  wholly  abandoned  ;  for  it 
appears  that  the  dimensions  were  the  same  when  the  *plaintiff  contracted    as 
they  were  when  the  building  was  finished ;  the  only  excess  was  in  the  altera- 
tion of  the  roof;  and  money  enough  to  cover  that  has  been  paid  by    the  defen- 
dant into  court.     The  jury,  under  this  direction,  found  a  verdict  for  the  defen- 
dant. 

So,  in  the  case  of  Robson  v.  Godfrey  (f)  which  was   an  action  to  recover 
the  amount  of  a  shipwright's  bill.  The  plaintiff  had  repaired  a  vessel  belonging 
to  the  defendants  ;  and  it  appeared  there  was  an  agreement  in  writing,  which 
described  the  work  to  be  done,  and  regulated  the  mode  of  payment.     The  re- 
pairs had  likewise  been  estimated,  and  the  expence  ascertained.     It  was  agreed, 
that  the  expence  should  not  exceed  the  sum  of  6201.     And  payment  was  to  be 
made  by  100/.  at  a  fortnight  after  the  repairs,  100/.  at  a  month,  100/.   at   six 
weeks,  and  the  residue  by  an  approved  bill  at  six  months,  which  had  not  expired  at 
the  time  the  action  was  brought.     The  declaration  contained  merely  counts  for 
work  and  labour,  and  materials  generally.     It  was  in  evidence,  that  the  original 
plan  for  the  repairs  had  been  varied  ;  that  other  work  had  been  done  by  the  de 
fendant's  order  out  of  the  scope  of  the  agreement,  and  beyond  the  repairs  origi- 
nally contemplated  between  the  parties.   For  the  defendants  it  was  objected,  that 
the  plaintiff  should  have  declared  on  the  special  agreement  as  far  as  it  extended; 


(«)  Peake'a  Cas.  N.  P.  103.  (J)  Holt.  X.  P.  Cas.  236.  I  Stark.  275. 

•237 


237  Of  Contracts  for  Services  and  Works.       [Part  II. 

and  for  any  excess  he  might  have  had  recourse  to  his  quantum  meruit.  Gibbs 
Ch.  J.  before  whom  the  cause  was  tried,  said,  "  I  agree  with  the  principle 
laid  down  by  the  defendant's  counsel,  that,  up  to  the  extent  of  the  estimate,  the 
plaintiff  must  be  paid  according  to  the  estimated  prices  ;  and  beyond  the  esti- 
mate, he  is  to  be  compensated  on  the  footing  of  a  quantum  meruit.  But  the 
objection  is  no  ground  of  nonsuit.  This  point  has  been  perplexed  by  cas- 
es ;  but  I  have  always  understood  the  rule  to  be,  that  unless  there  be  some- 
thing in  the  terms  of  the  special  agreement,  which  either  by  express  stipulation, 
or  necessary  intendment,  precludes  the  plaintiff  from  recovering  for  work  and 
labour  generally,  he  is  entitled,  after  the  contract  has  been  executed,  to  main- 
tain the  present  form  of  action.  It  is  every  day's  practice  to  bring  an  action  fcr 
goods  sold  and  delivered,  though  they  have  originally  been  ordered  upon  spe- 
cial terms  of  agreement.  This  case  falls  within  the  rule  I  have  stated.  There 
are  stipulations  in  this  contract  which  render  it  impossible  for  the  plaintiff  to 
recover  on  the  common  counts ;  the  mode  of  payment  is  specifically  defined, 
and  the  time  for  which  credit  was  to  be  given  has  not  yet  elapsed.  But  much 
of  the  work  was  performed  under  additional  orders,  independent  of  the  special 
contract ;  and  for  that  portion  the  plaintiff  may  recover  under  the  common  counts. 
But  looking  to  the  provisions  of  this  agreement,  I  am  of  opinion,  that  he  can- 
not recover  for  the  work  and  labour  which  were  performed  under  the  terms  of 
the  written  contract." 

*But  where  no  new  or  extra  work  has  been  done,  nor  any  agreed  deviation 
from  the  contract,  but  the  builder  has  improperly  departed  from  the  specifica- 
tion and  plan,  and  put  in  bad  materials,  &c.  it  has  been  holden,  that  he  can- 
not recover  upon  a  general  indebitatus  assumpsit  count  for  work  and  labour  up- 
on a  quantum  meruit.  Thus,  in  the  case  of  Ellis  v.  Hamlen,(g)  which  was  an 
action  brought  by  a  builder  against  his  employer,  upon  a  special  contract  for 
building  a  house  of  materials  and  dimensions  specified  in  the  contract,  to  recov- 
er the  balance  of  the  sum  therein  agreed  on  ;  the  principal  part  of  the  price 
having  been  paid.  At  the  trial  before  Mansfield  Ch.  J.,  the  defence  was,  and 
the  evidence  supported  it,  that  the  plaintiff  had  omitted  to  put  into  the  building 
certain  joists  and  other  materials  of  the  given  description  and  measure.  The 
counsel  for  the  plaintiff  proceeded  to  inquire  of  the  witnesses  what  additional 
sum  must  be  expended  on  the  house  to  make  it  equal  in  value  to  that  which 
was  specified  in  the  contract,  contending  that  the  plaintiff  was  entitled  to  recov- 
er in  this  action  the  whole  sum  which  was  specified  in  the  contract,  excepting 
thereout  the  amount  of  this  difference  in  value,  which  they  said  would  be  the 
measure  of  damages,  if  an  action  had  been  brought  on  the  contract  by  the  em- 
ployer against  the  builder  for  not  performing  his  contract ;  and  that  if  the  sums 
which  had  already  been  paid  to  the  plaintiff  on  account  did  not  amount  to  the 
whole  price  specified  in  the  contract,  deducting  therefrom  the  amount  of  the 
before-mentioned  difference  in  value,  the  plaintiff  was  entitled  to  a  verdict  for 
the  residue,  minus  that  difference.     But  the  Chief  Justice  was  of  opinion,  that 


(?)  3  Taunt.  55. 
'238 


Chap.  3.]     Of  Contracts  for  Services  and  Works.  238 

the  plaintiff  not  having  preformed  the  agreement  he  had  proved,  ought  to  be 
nonsuited.  The  plaintiff's  counsel  then  resorted  to  the  count  for  work  and  la- 
bour and  materials,  upon  a  quantum  meruit ;  and  said,  that  the  plaintiff  having 
the  benefit  of  the  houses,  was  bound,  at  least,  t„  pay  for  them  according  to 
their  value.  But  his  lordship  said,  "  Suppose  you  had  come  hither  upon  a 
quantum  meruit  only,  could  you  have  recovered  on  it  ?  Certainly  not.  The 
defendant  would  have  said,  '  I  made  no  such  agreement.  I  agreed  to  pay  you 
if  you  would  build  my  house  in  a  certain  manner,  which  you  have  not  done.' 
Here  the  plaintiff  has  properly  declared  on  his  special  contract;  and  he  has 
shown  and  proved  that  he  made  such  a  contract,  and  has  received  much  mon- 
ey on  it.  He  cannot  now  be  permitted  to  turn  round  and  say,  I  will  be  paid  by  a 
measure  and  value  price.  The  defendant  agrees  to  have  a  building  of  such 
and  such  dimensions  :  Is  he  to  have  his  ground  covered  with  buildings  of  no  use, 
which  he  would  be  glad  to  see  removed,  and  is  he  to  be  forced  to  pay  for  them 
besides  ?  It  is  said,  he  has  the  benefit  of  the  houses,  and  therefore  the  plaintiff 
is  entitled  to  recover  on  a  quantum  meruit ;  to  be  sure  it  is  hard  that  he  should 
build  houses  and  not  be  paid  for  them  ;  but  the  difficulty  is  to  *know  where  to 
draw  the  line  ;  for  if  the  defendant  is  obliged  to  pay  in  a  case  where  there  is  one 
deviation  from  his  contract,  he  may  equally  be  obliged  to  pay  for  anything,  how 
far  soever  distant  from  what  the  contract  stipulated  for."  The  plaintiff'  accord- 
ingly was  nonsuited ;  and  the  case  was  never  again  moved. 

In  an  action  of  assumpsit,  by  a  carpenter,  upon  a  quantum  meruit  for  work 
and  labour  done,  and  materials  found,  it  is  competent  to  the  defendant,  even 
without  notice  to  the  plaintiff,  to  prove  that  the  work  done  was  not  worth  so 
much  as  the  plaintiff  claims  ;  and  if  it  appear  that  the  plaintiff  has  been  paid 
on  account  as  much  as  the  work  was  worth,  he  cannot  recover.(122)  And  so  it 
seems  that  the  defendant  may  be  let  into  such  a  defence  where  the  contract 
was  for  the  work  to  be  done  at  a  certain  price  ;  at  least  if  he  give  the  plaintiff" pre- 
vious notice  of  such  defence,  so  that  he  may  be  prepared  to  meet  it.  Thus,  in 
the  case  of  Boston  v.  Butter,  (h)  which  was  an  action  of  assumpsit  for  work  and 
labour  done,  and  materials  found.  At  the  trial,  the  plaintiff's  witnesses  proved, 
that  the  defendant  employed  the  plaintiff,  a  carpenter,  to  do  some  work  for  him 
on  his  farm ;  and  the  plaintifPs  workman  put  on  a  roof  on  a  linhay,  and  also 
roofed  a  barn,  (the  defendant  finding  the  timber  and  nails,)  and  also  made 
gates  on  the  farm,  and  rails  near  the  house :  and  the  plaintiff  demanded  3/. 
lis.  Id.  as  now  due ;  but  his  witnesses  did  not  make  out  above  3/.  On  the 
part  of  the  defendant  it  was  stated,  that  it  would  be  proved  that  the  work  had 
been  done  by  the  plaintiff  in  a  very  improper  and  insufficient  manner  ;  that  the 
linhay  was  too  weak  in  the  roof;  which,  after  being  covered  with  thatch,  sunk 
in  the  middle,  so  as  to  let  the  water  through  ;  and  that  neither  the  rafters  or 


(h)  7  East  Rep.  479. 


(122)  See  Grant  v.  Button,  14  J.  R.  377. 

*239 


239  Of  Contracts  for  Services  and  Works.    [Part  II. 

roof  of  the  linhay  or  the  barn  were  sufficiently  supported.  And  therefore  it 
was  contended,  that  the  plaintiff  was  not  entitled  to  recover  what  he  now  claim- 
ed, as  remaining  due  to  him.  The  learned  Judge  rejected  the  evidence  pro- 
posed ;  and  the  plaintiff  recovered  a  verdict  for  31.  with  liberty  to  the  defendant 
to  move  for  a  new  trial  ;  which  was  accordingly  done.  And  the  Court  deter- 
mined, that  as  the  plaintiff's  claim  was  upon  a  quantum  meruit,  the  evidence 
offered  at  the  trial,  on  behalf  of  the  defendant,  ought  to  have  been  received : 
and  therefore  they  made  the  rule  absolute  for  a  new  trial :  and  Lord  Ellenbo- 
rough  Ch.  J.  said,  "  In  some  cases  the  plaintiff  may  not  be  prepared  to  meet 
an  objection  of  this  sort  at  the  trial ;  but  it  does  not  appear  here  what  had  pre- 
viously passed  upon  the  subject  between  the  parties.  Where  a  specific  sum  has 
been  agreed  to  be  paid  by  the  defendant,  the  plaintiff  may  have  some  ground  to 
complain  of  surprise,  if  evidence  be  "admitted  to  show  that  the  work  done, 
and  materials  provided,  were  not  worth  so  much  as  was  contracted  to  be  paid  ; 
because  he  may  only  come  prepared  to  prove  the  agreement  for  the  specific  sum 
and  the  work  done,  *unless  notice  be  given  to  him  that  the  payment  i3  disputed, 
on  the  ground  of  the  inadequacy  of  the  work  done.  But  where  a  plaintiff  comes 
into  court  upon  a  quantum  meruit,  he  must  come  prepared  to  show  that  the 
work  done  was  worth  so  much  ;  and  therefore  there  can  be  no  injustice  to  him 
in  suffering  this  defence  to  be  entered  into,  even  without  notice."  Mr.  Justice 
Le  Blanc  said,  "  I  think  that  in  either  case  the  plaintiff  must  be  prepared  to 
show  that  his  work  was  properly  done,  if  that  be  disputed,  in  order  to  prove 
that  he  is  entitled  to  his  reward  ;  otherwise  he  has  not  performed  that  which  he 
undertook  to  do,  and  the  consideration  fails.  And  I  think  it  is  competent  to  the 
defendant  to  enter  into  such  a  defence,  as  well  where  the  agreement  is  to  do 
the  work  for  such  a  sum,  as  where  it  is  general  to  do  such  a  work  :  and  it  is 
open  to  the  defendant  to  prove,  that  it  was  executed  in  such  a  manner  as  to  be 
of  no  value  at  all  to  him,  or  not  to  be  of  the  value  claimed." 

And  in  a  subsequent  case  of  Farnsworth  v.  Garrard,  (i)  which  was  an  action 
of  assumpsit  upon  a  quantum  meruit  for  work  and  labour,  and  materials  found. 
At  the  trial,  it  was  proved,  that  the  plaintiff  had  rebuilt  the  front  of  a  house  for 
the  defendant ;  but  when  finished,  it  was  considerably  out  of  the  perpendicular, 
and  according  to  several  oi  the  witnesses,  in  great  danger  of  tumbling  down, 
though  others  were  of  opinion  that  it  might  stand  for  many  years.  Lord  Ellen- 
borough  Ch.  J.  said,  "  This  action  is  founded  on  a  claim  for  meritorious  ser- 
vice. The  plaintiff  is  to  recover  what  he  deserves.  It  is,  therefore,  to  be  con- 
sidered how  much  he  deserves,  or  if  he  deserves  any  thing.  If  the  defendant 
has  derived  no  benefit  from  his  services,  he  deserves  nothing,  and  there  must 
be  a  verdict  against  him.  There  was  formerly  considerable  doubt  upon  this 
point.  The  late  Mr.  Justice  Buller  thought,  (and  I,  in  deference  to  so  great  an 
authority,  have  at  times  ruled  the  same  way,)  that  in  cases  of  this  kind,  a  cross 
action  for  the  negligence   was  necessary,  but  that  if  the  work  be  done,  the 


(i)  1  Campb.  3S. 
'240 


Chap.  8.]     Of  Contracts  for  Services  and  Works.  240 

plaintiff  must  recover  for  it.  I  have  since  had  a  conference  with  the  judges  on 
the  subject ;  and  I  now  consider  this  as  the  correct  rule, — that  if  there  has  been 
no  beneficial  service,  there  shall  be  no  pay  ;  but  if  some  benefit  has  been  deriv- 
ed, though  not  to  the  extent  expected,  this  shall  go  to  the  amount  of  the  plain- 
tiff's demand  ;  leaving  the  defendant  to  his  action  for  negligence.  The  claim 
shall  be  co-extensive  with  the  benefit.  Here  then  has  there  been  any  benefit, 
and  to  what  amount?  If  the  wall  will  not  stand,  and  must  be  taken  down,  the 
defendant  has  derived  no  benefit  from  the  plaintiff's  service,  but  has  suffered  an 
injury.  In  that  case  he  might  have  given  him  notice  to  remove  the  materials. 
Retaining  them,  he  is  not  likely  to  be  in  a  better  situation  than  if  the  plaintiff 
had  never  *placed  them  there ;  but  if  it  will  now  cost  him  less  to  rebuild  the 
wall,  than  if  it  would  have  done  without  these  materials,  he  has  some  benefit 
and  must  pay  some  damages."     The  jury  found  a  verdict  for  the  defendant. 

So,  where  a  person  undertakes  to  perform  a  work  of  skill  and  labor,  and 
fails  in  the  object;  so  that  his  employer  derives  no  benefit  whatever  from  the 
work,  the  former  is  not  entitled  to  any  remuneration,  (k) 

If  a  man  promises  to  build  a  mill  or  house  for  another,  within  a  certain  time, 
if  he  fails,  no  action  lies  upon  this  promise,  unless  there  be  a  consideration  al- 
leged for  the  doing  it,  it  being  nudum  pactum,  or  a  promise  without  any  consid- 
eration.^) So,  a  count  in  a  declaration  stating,  that  the  plaintiff  retained  the 
defendant,  who  was  a  carpenter,  to  repair  a  house  before  a  given  day  ;  that  the 
defendant  accepted  the  retainer,  but  did  not  perform  the  work  within  the  time, 
per  quod  the  walls  of  the  plaintiff's  house  were  damaged,  cannot  be  supported. 
But  a  count  stating  that  the  plaintiff,  being  possessed  of  some  old  materials,  re- 
tained the  defendant  to  perform  the  carpenter's  work  on  certain  buildings  of  the 
plaintiff,  and  to  use  those  old  materials  ;  but  that,  the  defendant,  instead  of 
using  them,  made  use  of  new  ones,  thereby  increasing  the  expence,  i3 
good.  Thus,  in  the  case  of  Elsee  and  another  v.  Gatward,(m)  which  was 
an  action  upon  the  case  in  tort.  The  first  count  in  the  declaration  stated, 
that  the  plaintiffs,  on  the  29th  of  August,  1791,  were  about  to  build  a 
warehouse,  &c.  and  to  rebuild  and  repair  certain  parts  of  a  dwelling-house 
and  stables,  <fcc,  and  were  very  desirous  of  having  the  warehouse  completely 
tiled  and  covered  in,  and  the  front  of  the  dwelling  house  rebuilt,  on  or  before 
the  1st  of  November  then  next ;  and  also  of  having  the  bricklayer's  and  car- 
penter's works  of  the  warehouse  completely  finished  on  or  before  the  1st  of 
December  ;  and  the  whole  of  the  remaining  repairs  finished  on  or  before  the  25th 
of  December  then  next;  and  thereupon  the  plaintiffs,  on  the  29th  of  August, 
1791,  at  the  special  instance  and  request  of  the  defendant,  who  was  a  builder, 
and  had  full  notice  of  the  premises,  retained  and  employed  the  defendant 
to  do  and  perform  all  and  singular  the  bricklayer's  and  carpenter's  works  which 
should  be  requisite  on  the  occasion  aforesaid,  within  the  several  times  therein 
before   mentioned    for   the   completion    thereof    respectively:    and    although 


!!?  fTT/u  B^nfeU\  3,St5rk-.<>-  (*)  3  Term  Rep.  143.  See  aleo  1  Rol.  Abr. 

(0  I  Rol.  Abr.  fo.  9.  pi.  1.  El  vide  ante  7.     9.  pi.  2.  3. 

*241 


241  Of  Contracts  for  Services  and  Works.      [Part  IT. 

the  defendant  afterwards  accepted  of  such  retainer  and  employment  upon 
the  terms  aforesaid,  and  could  and  ought  to  have  completed  all  such  brick- 
layer's and  carpenter's  works  within  the  said  respective  times,  yet  the  defen- 
dant contriving  to  injure  the  plaintiffs,  &c,  did  not,  nor  would  completely  tile 
or  otherwise  cover  in  the  said  warehouse,  &c.  on  or  before  the  said  1st  of 
* November,  nor  did  nor  would  finish  the  bricklayei's  and  carpenter's  works  of 
the  warehouse  on  or  before  the  said  1st  day  of  December,  and  the  whole  of  the 
remaining  repairs  on  or  before  the  said  25lh  day  of  December,  &e. ;  but,  on 
the  contrary  thereof,  permitted  the  said  warehouse  to  continue  untiled  and 
uncovered,  &c. ;  in  consequence  of  which  said  neglect  of  the  defendant,  the 
walls  of  the  said  premises  were  greatly  sapped  and  rotted,  and  the  ceiling 
damaged  and  spoiled,  and  the  plaintiffs  were  obliged  to  continue  tenants  of 
another  warehouse  and  stables,  <fcc.  and  were  thereby  put  to  additional  ex- 
pence,  &c.  The  second  count  stated,  that  the  plaintiffs,  on  the  29th  of  Au- 
gust, 1791,  being  possessed  of  divers  old  materials  of  buildings,  retained  and 
employed  the  defendant,  at  his  special  instance  and  request,  to  do  and  perform 
certain  bricklayer's  and  carpenter's  work,  upon  divers  buildings  and  premises 
of  them,  the  plaintiffs,  and  to  use  and  apply,  in  and  about  those  works,  all  such 
parts  of  the  old  materials  as  were  fit  and  proper  for  that  purpose ;  and  that, 
although  divers  parts  of  the  said  old  materials  were  fit  and  proper  to  have 
been  used  and  applied  in  and  about  the  said  works,  yet  the  defendant,  contriv- 
ing to  injure  the  plaintiffs  in  this  behalf,  and  to  enhance  the  expence  of  the 
bricklayer's  and  carpenter's  works,  did  not  nor  would  use  and  apply  in  and 
about  the  said  works,  such  parts  of  the  old  materials  as  were  fit,  &c.  but  refused 
so  to  do,  and  wrongfully  and  injuriously  used  and  applied,  in  and  about  the  same 
works,  other  new  and  expensive  materials,  in  the  stead  of  such  old  materials  as 
were  fit  and  proper  for  the  same  purposes  ;  whereby  the  plaintiffs  were  put  to 
an  unnecessary  expence,  &c,  and  the  old  materials  became  wholly  useless,  &c. 
The  defendant  demurred  to  these  two  counts  ;  and  the  Court,  after  argument, 
determined  that  the  first  count  of  the  declaration  was  bad,  for  want  of  con- 
sideration ;  but  that  the  second  count  was  good.  And  Lord  Kenyon  Ch.  J. 
said,  "  If  this  had  been  an  action  of  assumpsit,  it  could  not  have  been  sup- 
ported, for  want  of  a  consideration  ;  it  would  have  been  nudum  pactum :  and 
if  both  the  counts  be  not  good,  the  defendant  is  entitled  to  judgment.  Now  I 
do  not  think  that  the  first  count  in  the  declaration  is  good  in  law.  It  states 
that  the  defendant,  who  is  a  carpenter,  was  retained  by  the  plaintiffs,  to  build 
and  to  repair  certain  houses  ;  but  it  is  not  stated  that  he  was  to  receive  any 
consideration,  or  that  he  entered  upon  his  work.  No  consideration  iesulls 
from  his  situation  as  a  carpenter,  nor  from  the  undertaking;  nor  is  he  bound 
to  perform  all  the  work  that  is  tendered  to  him  :  and  therefore  the  amount 
of  this  is,  that  the  defendant  has  merely  told  a  falsehood,  and  has  not  perform- 
ed his  promise ;  but  for  his  non-performance  of  it  no  action  can  be  supported. 
This  is    warranted  by  Lord  Holt's  opinion,  in  Coggs  v.  Bernard,(n)    where, 


(n)  2  Ld.  Raym.  919. 
'242 


Chap.  3.]     Of  Contracts  for  Services  and  Works-         243 

recognizing' the  case  in  11  Hen.  4.  33.  lie  said,  'There  the  action  was  brought 
against  *a  carpenter,  for  that  he  had  undertaken  to  build  the  plaintiff  a  hor.se 
within  such  a  time,  and  had  not  done  it,  and  it  was  adjudged  the  action  would 
not  lie.'  And  on  this  opinion  I  think.  I  may  safely  rely,  especially  as  the  jus- 
tice of  the  case  will  not  be  altered  by  the  form  of  the  action  ;  for  if  assumpsit 
will  not  lie  in  such  a  case,  there  is  no  technical  reasoning  that  will  support  such 
an  action  as  for  a  tort.  In  that  case,  Powell  Just,  said,  '  An  action  will  not  lie 
for  not  doing  the  thing,  for  want  of  a  sufficient  consideration  ;  but  if  the  bailee 
will  take  the  goods  into  his  custody,  he  shall  be  answerable  for  them  ;  for  the 
taking  of  the  goods  into  his  custody  is  his  own  act.'  Lord  Holt  there  put  sev. 
eral  cases  to  establish  this  position,  which  will  reconcile  the  cases  now  cited 
on  the  behalf  of  the  plaintiffs.  In  Brown  v.  Dixon,(o)  the  defendant  had  re- 
ceived the  clog  into  his  possession.  This  case  is  very  distinguishable  from 
those  of  common  carriers  and  porters,  from  whose  situation  certain  duties  re- 
sult ;  they  are  bound  by  law  to  carry  goods  delivered  to  them,  and  are  by  law 
entitled  to  a  recompence  :  but  no  such  duty  results  from  the  situation  of  a  car- 
penter ;  he  is  not  bound,  as  such,  to  perform  all  the  work  that  is  brought  him. 
It  appears  to  me,  therefore,  that  the  first  count  cannot  be  supported,  there  being- 
no  consideration  expressly  stated,  nor  any  consideration  resulting  from  the  de- 
fendant's employment  as  a  carpenter  ;  though  had  the  defendant  performed  the 
work,  he  might  have  recovered  a  satisfaction  on  a  quantum  meruit.  Upon  the 
authority  of  Coggs  v.  Bernard,  and  the  cases  there  noticed,  not  contradicted 
by  any  other  decision,  I  think  that  the  first  count  for  nonfeazance  is  bad,  but 
that  the  second  count  may  be  supported.  It  is  there  stated,  that  the  defendant 
entered  upon  his  employment,  and  that  he  did  not  do  that  which  he  ought  to 
have  performed,  according  to  his  retainer.  In  that  count  it  is  stated,  that  he 
undertook  to  use  the  old  materials ;  that  in  fact  he  did  not  use  those,  but  sub- 
stituted new  ones  in  their  stead,  thereby  enhancing  the  expence  to  the  plain- 
tiffs. This  comes  within  the  case  mentioned  by  Lord  Holt,  in  Coggs  v.  Ber- 
nard, speaking  of  the  same  case  in  the  year  books  ;  '  but  there  the  question  is 
put  to  the  Court,  what  if  he  had  built  the  house  unskilfully  ?  and  it  was  agreed 
in  that  case,  an  action  would  have  lain  :'  for  though  the  defendant  could  not 
have  been  compelled  to  build  this  house,  and  to  use  the  old  materials,  yet  hav- 
ing entered  upon  the  contract,  he  was  bound  to  perform  it ;  and  not  having  per- 
formed it  in  the  manner  proposed,  an  action  lies  against  him." 

2.  Of  Services  by  Surveyors.] — A  surveyor  is  to  be  paid  for  his  services 
upon  a  quantum  meruit,  and  not  by  an  arbitrary  per-centage  upon  the  amount 
of  an  estimate,  or  according  to  the  amount  of  the  bills  he  looks  over  and  set- 
tles. Thus,  in  the  case  of  Upsdell  v.  Stewart  (p),  which  was  an  action  of 
assumpsit  for  work  and  labour,  as  a  surveyor :  *The  plaintiff  demanded  34/. 
being  51.  per  cent,  on  all  money  charged  by  and  allowed  to  the  different  trades- 
men. The  defendant  had  paid  one  half  of  the  sum  demanded  into  court,  con- 
Co)   1  Term  Rep.  274.  (p)  Peake's  Cas.  N.  P.   193. 

31  *243  *244 


244  Of  Contracts  for  Services  and  Works.     [Part  II. 

tended  that  2  1-2  per  cent,  was  a  sufficient  compensation  for  the  business  the 
plaintiff  had  done.  He  had  done  nothing  more  than  measure  the  work,  and 
settle  the  bills,  not  being  at  all  employed  in  building  the  house.  The  counsel 
for  the  plaintiff  offered  to  call  witnesses  to  prove,  that  the  uniform  practice  of 
surveyors  was  to  charge  5/.  per  cent,  on  all  money  allowed  to  the  workmen  ; 
and  he  instanced  the  case  of  surgeons  and  others,  whose  fees  were  settled  by 
the  evidence  of  professional  men,  as  to  the  usual  charge  on  such  occasions. 
But  Lord  Kenyan  Ch.  J.  said,  "  The  plaintiff  is  entitled  to  a  reasonable  compen- 
sation for  his  labour,  but  he  is  not  to  estimate  that  by  the  money  laid  out  by  the 
defendant  in  finishing  his  building.  I  am  bound  to  give  my  opinion  on  the 
matter  of  law,  the  jury  will  answer  as  to  the  matter  of  fact.  I  am  enabled  to 
state,  from  the  record,  what  is  the  true  question  between  the  parties.  The 
plaintiff  states  his  demand  to  be  '  as  much  as  he  reasonably  deserves  to  have 
for  his  work  and  labour.'  Does  he  reasonably  deserve  to  have  this  exorbitant 
demand  ?  As  to  the  custom  offered  to  be  proved,  the  course  of  robbery  on  Bag- 
shot  Heath  might  as  well  be  proved  in  a  court  of  justice.  It  ought  not,  nor 
cannot  be  supported." 

3.  By  Surgeons  and  Apothecaries.] — A  surgeon  or  apothecary  may 
maintain  an  action  of  assumpsit  for  labour  and  attendance,  as  well  as  for  medi- 
cines and  other  necessary  things  administered.  Though  if  a  surgeon  furnishes 
a  bill  to  his  patient,  and  leaves  a  blank  for  his  charge  for  attendances ;  if  the 
patient  pays  a  certain  sum  on  that  account,  the  surgeon  is  bound  by  the  sum 
so  paid,  he  not  having  made  any  specific  charge.  This  was  determined  in  the 
case  of  Tuson  v.  Batting  (q),  which  was  an  action  of  assumpsit  brought  by  the 
plaintiff,  who  was  a  surgeon,  for  attending  the  defendant's  wife:  and  the  mat- 
ter in  dispute  was  the  quantum  of  payment  which  was  claimed  by  the  plaintiff. 
The  defendant  lived  out  of  town,  and  the  attendances  had  been  made  there  :  the 
plaintiff  claimed,  as  a  customary  charge,  one  guinea  per  mile  for  each  atten- 
dance, in  addition  to  his  fee.  By  this  mode  of  calculation  the  plaintiff's  de- 
mand would  have  amounted  to  200/.  ;  but  he  had  delivered  a  bill  without  a 
specific  charge,  leaving  a  blank  for  the  sum  he  was  to  receive.  The  defendant 
paid  70/.  into  court :  this  was  taken  out,  and  the  plaintiff  went  for  a  further 
sum.  Several  surgeons  were  called  by  the  plaintiff,  who  all  proved,  that 
it  was  customary  *and  usual  for  surgeons  to  make  the  charge  of  one 
guinea  per  mile  where  the  attendance  took  place  out  of  town.  But  Lord  Ken- 
yon  Ch.  J. ,  after  observing,  that  though  professional  men  were  entitled  to  a 
fair  and  liberal  compensation  for  their  assistance,  said,  "  There  are,  however, 
certain  claims  which  they  affect  to  set  up,  which,  if  unreasonable  or  improper, 
it  is  the  business  of  the  jury  to  controul,  and  this  appears  to  be  one  of  them. 


(q)  3  Esp.  Rep.    192.     Note  by  the  stat.  practice  as  an  apothecary  prior  to,  or  on  the 

55  Geo.  3.  c.  194.  s.  21.  it  is  enacted,  "that  5th  of  August,  1815,  or  that  he  has  obtained 

no  apothecary   shall  recover    any    charges  a  certificate  to  practice  as  an  apothecary  from 

claimed  by  him  in  any  court  of  law,  unless  the  master,  wardens,  and  society  of  apothe- 

he  shall  prove  on  the    trial   that  he  was  in  caries." 

*245 


Chap.  3.]     Of  Contracts  for  Services  and  Works.  245 

In  the  present  case  the  plaintiff  delivered  a  bill,  leaving  a  blank,  for  his  atten- 
dances:  this  shows,  that  he  himself  considered  his  demand,  in  the  light  of  quid- 
dam  honorarium,  leaving  it  to  the  generosity  of  the  person  he  had  attended  :  now 
that  person  having  paid  money  into  court  to  a  certain  amount,  I  am  of  opinion, 
that  what  has  been  so  paid,  must  be  taken  as  the  sum  which  he  considers  as  a 
fair  remuneration  for  the  plaintiff's  services,  and  which  the  plaintiff  had  left 
open  in  his  bill ;  and  that  he  cannot  recover  any  more."  It  appearing,  howev- 
er, that  the  defendant  had  made  an  offer  to  pay  at  a  certain  rate,  Lord  Kcnyon 
left  it  to  the  jury  to  say,  whether  the  70Z.,  paid  into  court,  was  not  sufficient  to 
satisfy  the  whole  of  the  plaintiff's  demand.  The  jury  found  that  it  was,  and 
a  verdict  was  entered  for  the  defendant. 

If  a  surgeon  is  sent  for  to  attend  a  pauper,  with  the  knowledge  of  the  over, 
seer  of  the  poor  of  the  parish  to  which  the  pauper  belonged,  he  is  entitled  to  be 
paid  for  his  services  by  such  overseer.  Thus,  in  the  case  of  Lamb  v  Bunce,(r) 
where  a  pauper  had  his  leg  accidentally  fractured  in  one  parish,  and  was  con 
veyed  to  the  next  house  in  an  adjoining  parish,  and  was  there  confined  and  vis- 
ited by  the  overseer,  and  attended  by  the  surgeon,  who  attended  the  parish  poor, 
with  the  knowledge  of  the  overseer  :  it  was  determined,  that  the  surgeon  might 
have  assumpsit  against  the  overseer  for  the  expences  of  the  cure  ;  for  there  was 
not  any  obligation  against  the  parish  where  the  accident  happened  to  pay  these 
expences,  and  the  overseer's  knowing  of,  and  not  repudiating  the  surgeon's  at- 
tsndance  was  equivalent  to  a  request. 

It  has  been  held  to  be  a  good  defence  to  an  action  by  an  apothecary  for  his 
bill  of  charges,  that  he  treated  his  patient  ignorantly  and  improperly.  Thus, 
in  the  case  of  Kannen  v.  M' Mullen, (s)  which  was  an  action  of  assumpsit  for 
work  and  labour  as  a  surgeon  and  apothecary,  and  medicines  administered. 
The  plaintiff's  case  being  proved,  the  defendant  called  Mr.  Cline  and  Dr.  Lct- 
som,  who  said,  that  from  the  plaintiff's  bill  it  appeared  that  the  defendant  had 
been  very  improperly  treated,  as  medicines  perfectly  inconsistent  with  each 
other  had  been  administered.  Tli3y  confessed  that  disorders  would  some- 
times take  a  sudden  turn,  and  that  they  could  not  judge  so  well  as  they  should 
have  been  able  to  do,  had  they  attended  the  defendant.  *Lord  Kenyon  Ch.  J. 
said,  "  In  a  case  where  the  demand  is  compounded  of  skill  and  things  admin- 
istered, if  the  skill,  which  is  a  principal  part,  is  wanting,  the  action  fails,  be- 
cause the  defendant  has  received  no  benefit.  Many  cases  may  be  imagined 
where  great  mischief  would  happen  were  the  law  otherwise.  If  a  man  is  sent 
for  to  extract  a  thorn  which  might  be  pulled  out  with  a  pair  of  nippers,  and 
through  his  misconduct  it  becomes  necessary  to  amputate  the  limb,  shall  it  be 
said,  that  he  may  come  into  a  court  of  justice  to  recover  fees  for  the  cure  of 
that  wound  which  he  himself  has  caused  ?  I  do  not  say  that  this  case  amounts 
to  that  put,  but  where  shall  the  line  be  drawn  ?     If  the  medicines  applied  had 

(r)  Peake's  Cas.  N.  P.  59.    See  also  Hupe     son  v.  Turner,  Bui.  N.  P.  129.     dtkms  Ban- 
v.  Phelps,  2  Stark.  480.  well,  2  East  Rep.  «05. 

(«)  4  Maule  &.  Sel.  275.    Sec  also  Wat- 

*24G 


246  Of  Contracts  J  or    Services  una I  Works.     [Part  II. 

been  given  under  the  direction  of  a  physician,  however  improper  they  may  be, 
the  action  should  be  supported,  because  the  skill  would  not  in  that  case  be  the 
ground  of  the  action."  His  Lordship,  after  commenting  upon  the  evidence, 
left  it  to  the  jury  to  consider  whether  or  not  the  plaintiff'  had  misconducted  him- 
self, for  upon  that  must  their  verdict  depend.  The  jury,  however,  found  for 
the  plaintiff'  the  amount  of  the  money  charged  for  the   medicines. 

Indeed,  if  a  surgeon  or  apothecary  is  employed  to  attend  a  person  in  illness, 
the  law  implies  a  promise  or  contract  that  he  will  use  due  diligence  and  skill  in 
the  discharge  of  his  duty  ;  if  therefore  he  is  guilty  of  any  unskilfulness  or  negli- 
gence in  the  treatment  of  the  patient,  he  is  liable  to  an  action  for  damages  ;  and 
the  plaintiff"  may  declare  either  in  case  for  the  tort,  or  in  assumpsit,  (s) 

4.  By  Physicians.]— A  physician  cannot  maintain  an  action  for  his  fees. 
Thus,  in  the  case  of  Chorhy  v.  Bolcot(t)  executor,  which  was  an  action  of  assump- 
sit for  fees  for  attending  for  a  considerable  time  on  the  defendant's  testator,  who 
lived  at  some  little  distance  from  the  town  of  Doncastor,  where  the  plaintiff  re- 
sided ;  and  the  evidence  was,  that  at  Doncastor,  and  its  neighbourhood,  there 
was  no  certain  rule  about  fees,  but  the  general  practice  was  for  a  physician  to 
receive  two  guineas  a  week  for  his  attendance.  At  the  trial,  the  plaintiff  obtain- 
ed a  verdict.  But  a  motion  was  afterwards  made  to  set  aside  this  verdict,  and 
a  rule  nisi  was  obtained,  on  the  ground  that  no  action  lay  for  a  physician's  fees 
any  more  than  for  a  barrister's.  Upon  showing  cause  against  this  rule  it  was 
observed,  that  though  this  point  had  been  ruled  several  times  at  nisi  prius 
against  such  a  claim,  yet  it  had  never  been  solemnly  decided  ;  nor  was  there 
any  authority  in  the  books  for  putting  the  claim  of  a  physician's  fees  upon  the 
same  footing  as  those  of  a  barrister.  In  the  latter  case  it  might  originally  have 
been  proper  that  no  temptation  should  be  held  out  to  countenance  injustice  :  but 
in  the  former  it  would  be  equally  impolitic,  that  those  who  were  frequently  put 
to  expence  in  attending  patients  at  a  distance,  and  who  are  liable  to  make  rep- 
aration *to  those  who  may  suffer  by  their  want  of  skill,  should  not  be  certain  of 
a  just  and  honourable  reward.  The  regulation  with  regard  to  barristers,  is 
founded  on  grounds  of  public  policy,  as  appears  by  the  passage  inTacitus,  to 
which  Mr.  J.  Blackstone{ii)  refers  ;  but  they  are  totally  inapplicable  to  the 
case  of  physicians.  And  in  that  very  passage  in  Tacitus  it  is  taken  for  grant- 
ed that  the  latter  were  entitled  to  a  remuneration,  because  their  situation  was 
dissimilar  to  that  of  advocates.  Besides,  in  this  case  there  is  an  additional  rea- 
son why  the  plaintiff' should  recover,  as  there  is  understood  to  be  a  general  stip- 
ulated acknowledgment  for  a  physician's  attendance  at  the  place  where  this 
transaction  arose.  But  the  Court  determined,  that  the  action  could  not  be 
maintained.  And  Lord  Kenyon  Ch.  J.  said,  '« I  remember  a  learned  controver- 
sy some  years  ago  as  to  what  description  of  persons  were  intended  by  the  Me- 
dici at  Rome ;  and  it  seemed  to  have  been  clearly  established  by  Dr.  Mead, 
that  by  those,  were  not  meant  physicians,  but  an  inferior  degree    amongst  the 


(s)  Vide  Slater  v.  Baker,  2  Wils.  359.  Vide         (I)  4  Term  Rep.  317. 
Scare  v.  Prentice,  S  East.  Rop.  34S.  (u)  3  Bl.  Com.  289. 

*247 


Chap.  3.]    Of  Contracts  for  Services  and  Works.         247 

professors  of  that  art,  such  as  answer  rather  to  the  description  of  surgeons 
amongst  us  ;  but  at  all  events  it  has  been  understood  in  this  country  that  the 
fees  of  a  physician  are  honorary,  and  not  demanclable  of  right.  And  it  is  much 
more  for  the  credit  and  rank  of  that  honourable  body,  and  perhaps  for  their  ben- 
efit also,  that  they  should  be  so  considered.  It  never  was  yet  heard  of  that  it  was 
necessary  to  take  a  receipt  upon  such  an  occasion.  And  I  much  doubt  whether 
they  themselves  would  not  altogether  disclaim  such  a  right  as  would  place 
them  upon  a  less  respectable  footing  in  society  than  that  which  they  at  present 
hold." 

5.  By  Counsel.] — A  counsel  can  maintain  no  action  for  his  fees  ;  for  they  are 
said  to  be  given  not  as  locatio  vcl  conductio,  but  as  quiddam  honorarium  ;  not 
as  a  salary  or  hire,  but  as  a  mere  gratuity  which  a  counsellor  cannot  demand 
without  doing  wrong  to  his  reputation  :  as  is  also  laid  down  with  regard  to 
advocates  in  the  civil  law,  whose  honorarium  was  directed  by  a  decree  of 
the  senate  not  to  exceed  in  any  case  ten  thousand  sesterces,  or  about  80/.  of 
English  money,  (v)  So,  no  action  will  lie  against  a  barrister  for  negligently 
and  unskilfully  settling  a  bill  in  chancery. (w)  So,  no  action  will  lie  to  recover 
back  a  fee    given  to  counsel  to  attend  a  cause,  which  he  did  not  attend.(;r) 

6.  ByAttornies  and  Solicitors.]— For  services  performed  by  an  attorney 
or  solicitor  in  conducting  the  business  of  his  client,  he  is  entitled  to  be  paid  such 
reasonable  fees  and  reward  as  have  been  long  settled  and  established  in  the  pro- 
fession, and  allowed  in  the  different  courts  of  law.  Indeed,  for  common  law  and 
chancery  business,  there  are  officers  of  each  of  the  courts,  whose  peculiar  busi- 
ness it  is  to  tax  *attornies'  and  solicitors'  bills  of  costs.  But  for  conveyan- 
cing business  only,  their  bills  of  costs  are  not  taxable.  The  remedy  for  the 
recovery  of  an  attorney  or  solicitor's  bill  of  costs,  is  by  action  of  indebitatus 
assumpsit.  It  is,  however,  by  the  statute  2  Geo.  2.  c.  23.  s.  23.  (made  per- 
petual by  the  30  Geo.  2.  c.  19.  s.  75.)  enacted,  that  "no  attorney  of  the 
Court  of  King's  Bench,  Common  Pleas,  or  Exchequer,  &c.  nor  any  solicitor 
in  Chancery,  &c.  shall  commence  or  maintain  any  action  or  suit,  for  the  re- 
covery of  any  fees,  charges,  or  disbursements,  at  law,  or  in  equity  until  the 
expiration  of  one  month (y)  or  more,  after  such  attorney  or  solicitor  respec- 
tively, shall  have  delivered  unto  the  party  or  parties  to  be  charged  therewith, 
or  left  for  him,  her,  or  them,  at  his,  her,  or  their  dwelling-house  or  last  place 
of  abode  a  bill  of  such  fees,  charges,  and  disbursements,  written  in  a  common 
legible  hand,  and  in  the  English  tongue,  except  law  terms  and  names  of  writs, 
and  in  words  at  length,  except  times  and  sums  ;  which  bill  shall  be  subscribed 
with  the  proper  hand  of  such  attorney  or  solicitor  respectively."  And  this 
statute  provides  that  the  client  under  certain  terms  may  have  his  attorney's  bill 
taxed  by  the  proper  officers  of  the  different  Courts. 

But  it  having  been   doubted   whether  an  attorney's  bill    could   be  delivered 


(t>)  3  Bl.  Com.  28.  2  Atk.  332.  Sed.  vide  2         (x)  Turner  v.  Phillips,  lb.  122. 

f?£'  In'     »    Ellz-  59;       „    „  (y)  This  is  to  be  understood  a  lunar  month, 

(w)  Fell  v.  Brown,  Peake,  N.  P.  96.  5Esp.  Rep.  163. 

*243 


248        Of  Contracts  for  Services  and  Works.       [Part  II. 

•with  abbreviations,  it  was  enacted  by  the  statute  12  Geo.  2.  c.  13.  s.  5.,  that 
"  it  shall  and  may  be  lawful  to  and  for  any  attorney,  clerk  in  Court,  and  so- 
licitor, to  write  his  bill  of  fees,  charges,  and  disbursements  with  such  abbreviations 
as  are  now  commonly  used  in  the  English  language,  any  thing  in  any  former 
law  to  the  contrary  notwithstanding."  On  this  statute  it  has  beenholden,  that  an 
attorney  may  deliver  a  bill  of  costs,  containing  such  abbreviations  of  English 
words  as  are  usual  and  intelligible.^)  And  by  section  six  of  the  3ame  act  it  is 
declared  "  that  the  said  act  of  the  second  year  of  His  present  Majesty,  for 
the  better  regulation  of  attorneys  and  solicitors,  or  any  clause,  matter,  or  thing 
therein  contained,  shall  not  extend  to  any  bill  of  fees,  charges,  and  disbursements 
due  from  any  attorney  or  solicitor,  to  any  other  attorney  or  solicitor,  or 
clerk  in  court  ;  but  every  such  attorney,  &c.  may  use  such  remedies  for  the 
recovery  of  his  fees,  charges,  and  disbursements  against  such  other  attorney  or 
solictor,  as  he  might  have  done  before  the  making  of  the  said  act." 

Upon  these  and  other  acts  of  parliament  regulating  attorneys'  and  solici- 
tors' bills  of  costs,  a  great  variety  of  cases  are  to  be  met  with  in  our  law 
books  ;  but  they  are  all  so  accurately  collated  and  brought  together  in  Mr. 
Tida"s  very  valuable  treatise  on  the  Practice  of  the  Courts,  that  I  cannot  do 
better  than  refer  the  reader  to  _that  work  (*) where  he  will  find  the  result  of 
all  the  cases  clearly  digested.  In  *one  part  of  that  chapter  it  is  stated,(a) 
that,  "  if  the  whole  bill  be  for  conveyancing  it  cannot  be  taxed.  But  if  any 
part  of  an  attorney's  bill  which  has  been  delivered  be  for  business  done  in  court, 
the  bill  must  be  delivered  a  month  before  the  action  is  brought,  otherwise  the 
plaintiff  cannot  recover  ;  (b)  and  a  warrant  of  attorney, (c)  or  dedimus  po- 
testalem,(d)  charged  in  an  attorney's  bill,  is  a  sufficient  item  to  enable  the 
Court  to  refer  the  bill  for  taxation ;  though,  with  this  exception,  it  be  en- 
tirely for  conveyancing.  So,  where  one  of  the  charges  was  for  drawing  and 
engrossing  an  affidavit  of  debt,  in  order  to  hold  a  party  to  bail,  which  appear- 
ed to  have  been  sworn,  the  Court  of  King's  Bench  held  this  to  be  a  charge 
for  business  done  in  court,  which  made  the  bill  taxable,  (e)  But  a  charge  for 
preparing  an  affidavit  of  the  petitioning  creditor's  debt  and  bond  to  the  chancel- 
lor, in  order  to  obtain  a  commission  of  bankruptcy,  was  holden  not  to  be  a 
taxable  item  within  the  statute,  as  being  a  charge  at  law  or  in  equity  ; 
the  affidavit  not  having  been  sworn,  nor  a  commission  issued.  (/)  It  has 
been  made  a  question  whether  the  attorney  may  recover  for  charges  or  dis- 
bursements not  taxable,  when  part  of  his  demand  is  for  business  done  in  court  ; 
and  the  distinction  that  has  been  taken  is,  that  he  may,  where  he  has  delivered  no 
bill  at  all ;  but  that  where  he  has  delivered  a  bill  irregularly,  he  cannot:  (^)and,  ac- 


(z)  4  Taunt.  193.  (d)   1  New  Rep.  266. 

(*)  Chap.  iii.  p.  89.  &c.  7th  edition.  (e)   6  Term  Rep.  645. 

(a)  Tidd's  Prac.  ch.  iii.  93.  (/)  3  Barn.  &  Aid.  486. 

(6)  6  Term  Rep.  645.   Peake's  Cas.  102.         (g)    1   Campb.  439.,   and   see   the   case« 

1  Campb.  437.  there  cited, 
(c)  4  Campb.  68. 

•249 


Chap.  3.]      Of  Contracts  for  Services  and  Works-        249 

cordingly,inalatecase,(^)  an  attorney  not  having  delivered  any  bill  to  his  client  be- 
fore action  brought,  but  having  afterwards  delivered  a  bill  of  particulars  under  a 
judge's  order,  was  held  to  be  entitled  to  recover  charges  for  money  paid  for  his 
client's  use,  having  no  reference  to  his  business  of  an  attorney,  although  other 
items  in  his  bill  of  particulars  were  taxable.  Where  an  attorney  had  paid 
money,  in  consequence  of  his  undertaking  to  pay  the  debt  and  costs,  this  was 
holden  not  to  be  a  disbursement  by  him  as  an  attorney,  within  the  meaning  of 
the  statute,  (i) 

An  attorney  having  delivered  two  separate  bills,  one  of  which  was  for  fees 
and  disbursements  in  causes,  and  the  other  for  making  conveyances,  a  rule  was 
made  in  the  King's  Bench  for  taxing  both.(£)  And  so,  where  it  was  moved 
that  the  Master  might  be  directed  to  tax  those  articles  in  an  attorney's  bill, 
which  related  to  conveyancing  and  parliamentary  business,  the  rest  being  for 
management  of  causes  in  the  Court  of  King's  Bench,  Lord  Mansfield  said 
"  there  was  no  doubt  but  the  Master  might  tax  the  whole  ;  that  he  recollected 
a  case  where  the  fees  paid  to  a  proctor,  for  business  done  in  the  Ecclesiastical 
Court,  made  part  of  the  *bill  ;  and  it  was  determined  that  as  the  whole  bill  had 
been  referred  to  the  Master  he  might  tax  that  part  of  it."(Z)  The  Court  of 
King's  Bench  will  refer  an  attorney's  bill  to  be  taxed,  though  all  the  business 
was  done  at  the  Quarter  Sessions ;  (m)  and  in  such  case  an  action  cannot  be 
maintained  for  the  amount  of  the  bill,  unless  it  be  signed,  and  delivered  a 
month  before  the  bringing  of  the  action,  (n)  And  a  bill  was  referred  to  be 
taxed  for  business  done  in  a  criminal  suit  in  the  court  of  Gieat  Sessions  at 
Carmarthen  ;  and  though  it  was  objected  that  it  would  be  impossible  for  the 
Master  to  tax  the  costs  in  Wales,  not  knowing  the  practice  there,  yet  the  Court 
held  that  he  could  as  well  tax  these  costs  as  costs  in  the  Spiritual  Court ;  and 
if  he  were  at  a  loss  he  might  call  in  assistance,  (o)  In  the  Exchequer,  a  crown 
solicitor's  bill  of  costs,  for  business  done  under  an  extent,  is  taxable,  (p)  But 
the  Court  cannot  order  a  solicitor's  bill  of  costs,  for  business  wholly  done  in 
the  House  of  Lords  in  the  prosecution  of  an  appeal,  to  be  referred  for  taxation ; 
because  their  officer  has  no  means  whereby  he  may  be  enabled  to  tax  such  a 
bill.(y)  Upon  the  stat.  5  Geo.  2.  c.  30.  s.  25.  relating  to  the  expences  of  suing 
out  a  commission  of  bankrupt,  it  has  been  holden,  that  the  petitioning  creditor 
is  liable  to  the  solicitor  for  the  expence  of  conducting  the  commission,  up  to 
the  choice  of  assignees,  (r)  But  as  between  the  solicitor  and  messenger  there 
is  no  implied  contract  on  the  part  of  the  former  to  pay  him  his  expences.  (s)  And 
under  the  46th  section  of  the  same  statute,  by  which  is  it  enacted,  "  that  all  bills 


(h)   11  East  Rep.  285.  (o)  Lloyd  v.  Maiind,  T.  25    Geo.  3.K.  B. 

(t)  6  Taunt.   196.     1  Marsh.  539.  Tidd's  Prac.  94. 

(fc)  Say.  Rep.  233.     Tidd's  Prac.  93.  (;>)   Rex  v.    Partridge,    T.  56  Geo.    3.  3 

(0  Dousj.   199.  in  notis.  Price,  280.     West  on  extents,  230. 

(m)  4  Term  Rep.  496.;  but  see  Id.   124.  (7)  4  Price,  279. 

Barnes,  122.  contra.  (r)   1  Rose.  Cas.  449.     Holt,  N.   P.   Cas. 

(»)  5  Term  Rep.  631.   1  Esp.  Rep.    137.  245—376. 

S.  C.  (a)  Holt,  247.  in  notis. 

*250 


250         Of  Contracts  for  Services  and   Works.       [Part  II. 

oi  fees  or  disbursements  claimed  or  demanded  by  any  solicitor,  clerk,  or  attor- 
ney employed  under  any  commission  of  bankrupt,  shall  be  settled,  adjusted,  and 
certified  by  one  of  the  Masters  of  the  Court  of  Chancery;  and  so  much  as  the 
Master  shall  certify  to  be  due  to  such  clerk,  solicitor,  or  attorney,  and  no  more, 
shall  be  paid  by  the  assignee  under  such  commission,"  it  has  been  determined 
that  an  action  may  be  maintained  by  a  solicitor  against  an  assignee  for  business 
done  under  a  commission  of  bankrupt,  one  month  after  he  has  delivered  a  copy 
of  his  bill,  although  it  has  not  been  taxed  by  a  Master  in  Chancery. (t)  But 
an  attorney's  bill  for  obtaining  a  bankrupt's  certificate  must  be  signed  and  de- 
livered a  month  before  he  can  be  sued  thereon,  (u) 

Though  the  statute  2  Geo.  2.  c.  23.  does  not  extend  to  bills  of  fees,  &c.  be 
tween  attorneys  and  solicitors,  yet  it  is  said  (x)  to  be  the  uniform  practice 
of  the  courts  to  refer  an  agent's  bill  to  be  taxed,  upon  the  *defendant's 
bringing  into  court  the  sum  claimed  by  the  plaintiff.  It  is  not  necessary,  how- 
ever, that  a  bill  should  be  signed  or  delivered  before  the  commencement  of  an 
action,  (y)  And  where  husiness  has  been  done  by  an  attorney  for  a  client  who 
afterwards  becomes  himself  an  attorney,  the  former  need  not  deliver  a  bill  sign- 
ed, in  ordjr  to  recover  his  costs. (z)  It  is  not  necessary  for  an  executor  or  ad- 
ministrator of  an  attorney  to  deliver  a  bill  of  costs  for  business  done  by  his  tes- 
tator or  intestate,  before  the  commencement  of  an  action,  the  statute  2  Geo.  2. 
c.  23.  s.  23.  being  confined  to  actions  brought  by  the  attorney  himself,  and  not 
extending  to  his  personal  representatives,  (a)  But  such  a  bill  may  be  referred  to 
be  taxed,  on  the  defendant's  undertaking  to  pay  what  is  due.  (b)  Where  an  at- 
torney delivered  his  bill,  and  after  his  death  application  was  made  to  tax  it, 
and  above  a  sixth  part  was  taken  off,  it  was  moved  that  the  executrix  might 
pay  the  costs  ;  but  the  Court  of  King's  Bench  held  that  she  should  not ;  for 
the  words  of  the  above  act  impose  them  upon  the  attorney  or  solicitor  only ; 
and  the  executrix  is  not  to  blame,  if  she  stand  upon  his  bill,  or  make  out  one 
from  his  books. (c)  Before  an  attorney's  bill  has  been  settled  and  paid,  it  may 
be  taxed  as  a  matter  of  course,  at  any  distance  of  time(d)  :  but  after  it  has  been 
settled  and  paid,  and  the  payment  has  been  long  acquiesced  under,  the  courts 
will  not  refer  it  to  be  taxed  as  a  matter  of  course,  (e)  So,  where  a  bond  had 
been  given  for  the  debt  five  years  before,  and  the  vouchers  had  been  delivered 
up,  the  Court  of  Common  Pleas  would  not  refer  the  bill  to  be  taxed  ;  saying 
an  attorney,  at  this  rate,  could  never  be  safe.(/)  And  it  is  a  general  rule,  that 
an  attorney's  bill  cannot  be  taxed  at  the  trial  of  an  action  brought  upon  it,  nor 


(0   1  Stark.  278. ;  and  see  2  Campb.  273.  Pr.  C.  P.  58. 

2  Stark.  59.     Tidd's  Prac.  95.  (b)   1  Salk.  89.  2  Str.  1056.  4  Taunt.  724. 

00  2  Taunt.  321.     1  Rose,  119.  S.  C.  (c)  2  Stra.  1056. 

(i)  Tidd's  Prac.  95.  (d)  Per  cur.  T.   34  Geo.  3.  K.  B.  Tidd's 

(y)  Doug.  199.  in  notis.  Peake's  Cas.  1,  2.  Prac.  96. 

1  Eap.  Rep.  221.  (e)  Say.  Costs,  323.  Doug.  199. 

(z)  2  H.  Blac.  5S9.  1  Esp.  Rep.  420.  (/)  Cas.  Pr.  C.  P.  109.  Pr.  Reg.  37. 

(a)   1  Barnard.  K.  B.  433.  Andr.  276.  Cas. 

*251 


Chap.  3]     Of  Contracts  for   Services  and  Works.        251 

after  verdict,  except  under  special  circumstances,  (g)  It  may  also  be  taxed 
though  there  was  a  special  agreement  between  the  attorney  and  his  client  that 
the  former  should  be  paid  for  his  time,  at  a  certain  rate  by  the  day,  besides  his 
expences  (/t)  ;  or  though  he  has  obtained  a  warrant  of  attorney  from  his  client, 
for  confessing  judgment  for  the  money  due  upon  his  bill  ;  and  has  entered  up 
judgment  thereupon.(i)  But  the  plaintiff  having  paid  to  an  attorney  the  amount 
of  his  bill,  cannot  after  a  reduction  of  the  paid  bill,  by  taxation  recover  the 
difference. (k) 

The  statute  2  Geo.  2.  c.  23.  s.  23,  only  requires  the  delivery  of  a  bill,  for  the 
bringing  of  an  action ;  and  therefore  though   an   attorney  cannot  bring  an   ac- 
tion on  his  bill  till  it  has  been  delivered  a  *month,    that  circumstance  is    not 
necessary  to  enable  him  to  set  it  off;  but  he  must  not  produce  it    at  the  trial 
by  surprise.     It  is  however  sufficient  in  such  case,  to  deliver  the  bill  time  enough 
for  the  plaintiff  to  have  it  taxed  before  the  trial.  (I)     The  delivery  of  a  former 
bill  is  conclusive  evidence  against  an  increase  of  charge  in  a  subsequent  bill, 
on  any  of  the  items  contained  in  it,  and  strong  presumptive  evidence    against 
any  additional  items  ;  but  if  there   were  any  real   errors  or    omissions  in    the 
former  bill,  they  may  be  rectified  ;{m)  and    a  mistake  in  the  date    of  items  in 
an  attorney's   bill,   which  does  not  mislead,    will  not   vitiate    the    delivery,  (n) 
The  month  mentioned  in  the  statute  is  construed  to  be  a  lunar  month,(o)  and 
where  a  bill  of  costs  is  delivered  to  the  party,  it  must  be  left  with  him,  and  not 
taken  back  again.(p)     Where   two  persons  are  liable   to  an   attorney,  for   busi- 
ness done    on  their  joint  retainer,    it  is  sufficient  for  him  to    deliver  a  copy  of 
his  bill  to  one  of  them  from   whom  he  received    his  instructions,  and   to  whom 
the  management  of  the    business  was  left   by   the  other:  but  it   seems,  that  a 
delivery  of  a  copy  of  the  bill  in  such  case,  to  the  one  who  did  not  intermeddle, 
would  not  be  sufficient ;  for  he  cannot  be  considered  as  having  authority  to  receive 
it  for  both  ;  nor  is  he  likely  to  know  what  foundation    there  is  for  the  charges 
in  the  bill.(y)     And  where  a  party  in  a  cause  having  changed  his   attorney  in 
the   progress  of  it,    a  judge's  order  was    afterwards  obtained  by   the   second 
attorney  for  the  delivery  of  a  bill  signed  by  the  first,  of  his  fees  and    disburse- 
ments, which  delivery  was  accordingly  made  to  the  second  attorney;  this  was 
holden  by  a  majority  of  the  judges  of  the  King's  Bench  to  be  a  sufficient  de- 
livery of  the  bill  to  the  party   to  be  charged  therewith,    within    the  words  and 
meaning  of  the  statute,  so  as  to  enable  the  first    attorney  to  bring   his   action 
against  the  client  for   the  amount  of  such  bill.(r)     So,    the    delivery  of  a  bill 
to  the  attorney  of  the  party  to  be  charged,  is  deemed   sufficient,    if  the    party 
himself  attend  the  taxation,  or  the  bill  be  shown  to  have  come  to  his  hands.(s) 
If  the  bill  be  not  delivered  to  the  party  it  must  be  left  for  him  at  his  dwelling- 


(g)  Doug.  199.;  and  see    2  Bos.  &  Pul.         (m)  1  Bos.  &  Pul.  49. 

237.  („)  4  Taunt.  806. 

(ft)  Say.  Costs,  321.  2  Barnard  K.  B.  164.         (o)  5  Esp.  Rep.  168. 

contra.  (p)  1  H.  Bl.  290. 

(t)  Say.  Costs,  322.  Tidd's  Prac.  97.  (7)  2  Campb.  277. ;  and  see  1  Campb.  437. 

(fc)  2  Stark.  85.  (r)  12  East  Rep.  372. 

(0  Dou£.  199.  Tidd's  Prac.  97.  (j)  1  Gow.  71.    Tidd's  Prac.  98. 

32  *252 


2o2        Of  Contracts  for  Services  and  Works.     [Part  II. 

house,  or  last  place  of  abode ;  leaving  it  at  the  compting-house  not  being 
deemed  sufficient. (t)  In  an  action  on  an  attorney's  bill,  it  is  sufficient  to  give 
in  evidence  a  judge's  order  to  tax  the  bill,  the  defendant  undertaking  to  pay 
tvhat  should  appear  to  be  due,  and  the  Master's  allocatur  thereupon  (u)  ; 
and  the  defendant  will  not  be  permitted  to  question  the  reasonableness  of  the 
items  before  a  jury,  (x)  In  such  an  action  the  nisi  prius  record  is  good  prima 
facie  evidence  to  show  that  the  action  was  not  commenced  till  the  expiration  of 
a  month  after  the  delivery  of  the  bill  (y )  ;  but  where  it  is  material  for  the  defen- 
dant *to  show  that  the  action  was  commenced  earlier  than  it  appears  to  have 
been  by  the  nisi  prius  record,  the  declaration  delivered  by  the  plaintiff  is  admis- 
sible evidence,  (z)  However,  it  is  advisable  in  all  cases  to  produce  and  prove 
a  copy  of  the  writ.  Where  an  attorney  has  regularly  deliveied  a  bill  signed, 
he  may  give  a  copy  of  it  in  evidence,  without  proof  of  notice  to  produce  the 
original. (a)  But  unless  a  duplicate  of  the  bill  be  kept,  the  plaintiff  cannot 
give  parol  evidence  of  its  contents,  without  a  notice  to  produce  it.  (b) 

Negligence  of  an  attorney  in  the  conduct  of  a  cause,  cannot  be  set  up  as  a 
defence  tc  an  action  on  his  bill  of  costs  in  that  cause,  (c)  But  if  an  attorney 
be  retained  to  prosecute  or  defend  an  action  or  perform  any  other  professional 
business,  the  law  implies  a  contract  or  promise  on  his  part  that  he  will  use  due 
diligence,  skill,  and  attention  ;  and  if  he  is  guilty  of  any  gross  negligence  or 
conducts  his  business  ignorantly  and  unskilfully,  he  is  liable  to  an  action  of  as- 
sumpsit for  any  damage  his  client  may  sustain  in  consequence  thereof.  This 
was  settled  in  the  case  of  Russel  v.  Pahner,(d)  which  was  an  action  of  assump~ 
sit  against  the  defendant,  he  being  an  attorney  and  retained  by  the  plaintiff  to 
prosecute  an  action  at  his  suit  against  John  Stewart  in  the  Court  of  King's 
Bench,  for  not  charging  the  latter  in  execution  in  due  time  according  to  the 
rules  and  practice  of  that  Court.  The  cause  was  first  tried  before  Lord  Cam' 
den,  when  a  verdict  was  given  for  the  plaintiff  for  3000/.  the  whole  debt,  by  his 
Lordship's  direction  ;  but  afterwards  a  new  trial  was  granted,  his  Lordship  and 
the  Court  being  of  opinion,  that  he  had  misdirected  the  jury,  in  telling  them  they 
ought  to  find  a  verdict  for  the  whole  debt :  whereas  this  action  sounds  merely 
in  damages,  and  the  jury  ought  to  have  been  left  at  liberty  to  find  what  dama- 
ges they  thought  fit.  But  upon  the  second  trial,  the  jury  were  told  they  might 
find  what  damages  they  pleased,  and  accordingly  they  found  500/.,  as  it  appear- 
ed to  them  in  evidence,  that  Stewart  was  not  totally  insolvent ;  and  against  this 
latter  verdict  the  counsel  for  the  defendant  moved  for  a  new  trial  upon  the 
ground  that  the  defendant  had  not  been  guilty  of  any  negligence,  but  only  an 
error  in  judgment  in  the  construction  of  a  doubtful  point  of  practice  :  for  the 
rule  of  the  Court  of  King's  Bench  made  in  Trinity  term  in  the  2d  year  of  Geo. 


(0  2  Bos.  &.  Pul.  313. ;  bat  see  1  Stark.        (a)  2  Bos.fc  Pul.  237.  3  Esp.  Rep.  167. 

324.  (6)2Campb.  110. 

(u)  2Campb.  496.  (c)   Tempter  v.  MLachlan,  2   New    Rep. 

(x)Doug.  193.  136.                                                  .  _    

(f)  1  Bob.&.  Pul.  263.  (<*)  2Wils.  32§. 
tOSCampb.  497.il. 

*2«8 


Chap.  8.]     Of  Contracts  for  Services  and  Works.        £53 

I.  touching  this  matter,  is  in  very  doubtful  words,  viz.  "  If  any  plaintiff  shall 
obtain  judgment  in  the  court  here  in  any  action  against  any  defendant  a  prisoner, 
and  shall  not  charge  the  said  defendant,  so  in  prison  remaining,  in  execution, 
upon  the  judgment  so  obtained,  within  two  terms  next  after  such  judgment  so 
had  and  obtained,  then  such  defendant,  so  in  prison  remaining  shall  have  leave 
to  file  common  bail,  or  to  sue  out  a  writ  of  supersedeas  for  his  discharge  out  of 
custody  ;"  that  from  the  words  of  this  rule,  it  seems  as  if  *the  plaintiff  had  two 
terms  next  after,  and  exclusive  of  the  term  wherein  judgment  was  obtained 
against  the  prisoner,  to  charge  him  in  execution  ;  and  therefore  it  was  moved  en 
behalf  of  the  defendant  that  judgment  might  be  stayed,  for  two  reasons :  first, 
because  if  the  defendant  Palmer  had  two  terms  exclusive  of  the  term  wherein 
judgment  was  obtained  against  Stewart,  and  wherein  he  rendered  himself  to 
prison,  to  charge  Stewart  in  execution,  then  this  action  is  misconceived  ;  and, 
2dly,  although  the  meaning  and  construction  of  the  said  rule  be,  that  Mr.  Palmer 
ought  to  have  caused  Stewart  to  be  charged  in  execution,  the  very  next  term 
after  the  term  wherein  judgment  was  obtained  against  Stewart,  and  wherein 
he  rendered  himself,  yet  the  words  of  the  rule  are  so  doubtful  that  it  can  be 
only  considered  as  an  error  in  judgment  in  Mr.  Palmer,  and  not  a  negligence  in 
the  duty  of  his  office  as  an  attorney.  Upon  showing  cause,  the  Lord  Ch.  J. 
Wilmot  reported  that  several  eminent  practisers  were  examined  upon  the  trial 
as  to  the  construction  and  practice  upon  the  said  rule,  who  said,  that  of  lat« 
years  it  was  well  understood,  that  a  person  surrendering  in  discharge  of  his  bail 
after  judgment  must  be  charged  in  execution  the  very  next  term  after  such 
surrender :  some  of  them  said  they  believed  this  was  not  universally  known 
by  the  city  attomies,  and  that  they  thought  that  it  was  an  omission  in  Mr. 
Palmer,  proceeding  from  want  of  judgment,  and  not  from  any  wilful  negli- 
gence. The  Court,  however,  refused  to  grant  a  new  trial,  saying,  "  We  are 
all  of  opinion,  that  this  action  is  well  conceived,  and  lies  against  Mr.  Palmer 
for  negligence  ;  and  we  have  authority  to  say,  that  Lord  Camden  is  of  the  same 
opinion." 

But  in  the  case  of  Pitt  v.  Yalden,(c)  which  was  an  application  to  the  Court 
of  King's  Bench  against  an  attorney  for  negligence  for  not  declaring  against  a 
defendant  in  due  time,  Lord  Mansfield  said,  "  that  part  of  the  profession  which 
is  carried  on  by  attornies  is  liberal  and  reputable,  as  well  as  useful  to  the  pub- 
lic, when  they  conduct  themselves  with  honour  and  integrity  :  and  they  ought 
to  be  protected  where  they  act  to  the  best  of  their  knowledge.  But  every  man 
is  liable  to  error ;  and  I  should  be  very  sorry  that  it  should  be  taken  for  grant- 
ed, that  an  attorney  is  answerable  for  every  error  or  mistake,  and  to  be  pun- 
ished for  it,  by  being  charged  with  the  debt  which  he  was  employed  to  recov- 
er for  his  client  from  the  person  who  stands  indebted  to  him.  A  counsel 
may  mistake  as  well  as  an  attorney.  Yet  no  one  will  say,  that  a  counsel,  who 
has  been  mistaken,  shall  be  charged  with  the  debt.  The  counsel,  indeed,  is 
honorary  in  his  advice,  and  does  not  demand  a  fee  :  the  attorney  may  demand 


(e)  4  Burr.SOGO. 


251         Of  Contracts  for  Services  a  fid  Works.     [Part  II. 

a  compensation.  But  neither  of  them  ought  to  be  charged  with  the  debt  for  a 
mistake.  Not  only  counsel,  but  judges  may  differ  or  doubt,  or  take  time  to  con- 
sider. Therefore  an  attorney  ought  not  to  be  liable,  in  cases  of  reasonable 
doubt. 

*7.  By  Proctors.] — Fees  payable  to  proctors,  and  other  officers  of  spiritual 
or  ecclesiastical  courts,  in  respect  of  business  done  by  them  in  those  courts,  are 
recoverable  at  common  law  by  action  of  indebitatus  assumpsit  or  quantum  me- 
ruit, and  not  by  suit  in  the  spiritual  courts.  This  question,  however,  has  been 
much  litigated,  and  there  are  resolutions  both  ways  :  but  the  better  opinion 
seems  to  be  that  fees  cannot  be  sued  for  in  a  spiritual  court.(/) 

8.  By  Commissioners  to  examine  Witnesses.] — If  one  be  named  a  com- 
missioner to  examine  witnesses  in  a  cause  depending  in  Chancery  or  Exche- 
quer, who  officiates  accordingly,  he  may  bring  an  action  of  assumpsit  forhis  la- 
bour and  pains ;  for  though  he  is  to  be  considered  as  an  officer  of  the  court, 
yet  he  is  not  compellable  to  attend  against  his  will,  nor  does  the  trust  reposed 
in  him  make  his  taking  a  reward  bribery,  for  the  party  is  to  take  care  to  name 
such  as  will  serve,  and  it  is  but  reasonable  it  should  be  at  the  charge  of  him  for 
whom  he  officiates,  [g) 

9.  By  Arbitrators.] — No  action  will  lie  for  business  done  as  an  arbitrator, 
unless  there  be  an  express  promise  to  pay  him  a  sum  of  money  for  his  trouble. 
Thus,  in  the  case  of  Virany,  executor,  v.Warne,(h)  which  was  an  action  of 
assumpsit  for  work  and  labour  by  the  plaintiff's  testator  in  his  life-time.  The 
plaintiff's  counsel,  in  stating  the  case  to  the  jury,  said,  that  the  action  was 
brought  to  recover  a  sum  of  money  due  to  the  testator,  for  acting  as  an  arbitra- 
tor on  the  part  of  the  defendant,  in  a  dispute  which  he  had  had  with  his  part- 
ner. Lord  Kenyon  Ch.  J.  interrupted  him  by  saying,  that  he  conceived  the  ac- 
tion was  not  maintainable  :  that  the  appointment  of  an  arbitrator  was  not  of 
such  a  nature  as  to  raise  a  demand  for  payment ;  and  that  he  should  tell  the 
jury  that  his  opinion  was,  that  the  plaintiff  was  not  entitled  to  recover  any 
thing,  unless  she  could  prove  an  express  promise.  The  plaintiff  was  therefore 
nonsuited. 

But,  in  the  case  of  Hardress  v.  Prowd,{i)  where  the  declaration  stated, 
that  whereas  the  plaintiff,  at  the  instance  and  request  of  the  defendant,  had  ta- 
ken pains  to  reconcile  differences  betwixt  the  defendant  and  J.  S.  and  others,  the 
defendant  promised  to  pay  to  the  plaintiff  100?.  at  a  certain  day;  and  for  this 
sum  the  action  was  brought.  It  was  objected,  that  this  was  no  more  than  a 
voluntary  courtesy  :  But  Glyn  Ch.  J.  held  e  contra ;  for  this  was  undertaken 
at  the  instance  of  the  defendant,  and  here  was  a  continued  consideration,  though 
the    pains    taken    were    past  ;    and   judgment  is    said  to    have    been    given 

nisi,  &c. 

10  By  Clergymen.] — An  agreement  with  a  vicar  to  pay  him  so  much  per 


(f)  Vide  1    Mod.    167.     4  Mod.  254.  5  (g)  Carth.  208.  Comb.  186. 

Mod.  238.  Gibs.  Cod.  1015.  Ld.  Ray.  703.  (k)  4  Esp.  Rep.  47. 

Doug.  629.  (t)  Sty.  465. 

♦255 


Chap.  3.]     Of  Contracts  j or  Services  and  Works.        255 

annum  for  preaching  is  good. (A)  (123)  So,  where  a  rector  gives  a  person  a 
title  to  the  bishop,  by  which  he  appoints  him  curate  of  his  *parish  church,  3nd 
undertakes  to  continue  him  and  pay  him  a  salary,  "  till  he  shall  be  otherwise 
provided  of  some  ecclesiastical  preferment,  or  for  fault  by  him  committed,  law- 
fully removed,"  the  rector  cannot  remove  him  without  cause  while  he  continues 
rector  of  that  parish ;  and  the  curate  may  recover  his  stipend  from  the  rector 
by  action  of  assumpsit  upon  the  title.  But  if  the  rector  is  bona  Jide  preferred 
to  another  living,  the  obligation  ceases.  A  readership  is  not  an  ecclesiastical 
preferment  within  the  meaning  of  such  a  title.  (/) 

11.  By  Stage  Performers.] — An  action  will  not  lie  for  the  breach  of  an 
agreement  "  to  dance  at  the  King's  Theatre  in  the  Haymarket,  or  at  such 
other  place  as  the  plaintiff  should  appoint,"  if  it  appear  that  no  license  for  that 
theatre  was  granted  by  the  Lord  Chamberlain,  as  required  by  the  10  Geo.  2.  c. 
28.,  and  that  the  plaintiff  did  not  request  the  defendant  to  dance  at  any  other 
place  which  was  licensed.  Thus,  in  the  case  of  Gallini  v.  Laborie,{m)  which 
was  an  action  of  assumpsit  upon  a  contract  by  which  the  defendant,  a  foreign- 
er, undertook  to  come  over  to  England,  in  order  to  dance  ballets  at  the  Italian 
opera  in  the  Haymarket,  called  the  King's  Theatre,  or  at  such  other  place  as 
the  plaintiff  should  appoint.  The  defendant  never  came  at  all.  But  it  appear- 
ed that  during  the  time  for  which  the  defendant  had  engaged,  there  had  been  no 
license  from  the  Lord  Chamberlain  for  the  Opera  House,  though  the  plaintiff's 
company  had  exhibited  dancing  entertainments  there,  but  the  plaintiff  had  a  li- 
cense for  performing  musical  entertainments  at  a  house  in  Hanover  Square. 
No  request,  however,  was  made  to  the  defendant  to  perform  there  ;  nor  did  it 
appear  that  he  had  any  notice  that  the  plaintiff  had  such  a  license.  A  verdict, 
however,  was  given  for  the  plaintiff:  but  a  motion  was  afterwards  made  to  the 
Court  of  King's  Bench  for  a  rule  to  set  aside  this  verdict,  on  the  ground,  that 
inasmuch  as  the  plaintiff  had  not  obtained  a  license  from  the  Lord  Chamber- 
lain to  perform  entertainments  of  the  stage,  the  defendant  could   not  be   bound 


(k)   1  Sid.  409.  2Keb.  477.  (,„)  5  Term  Rep.  242. 

(/)  Martin  v.  Hind,  Doug.  141.  Cowp.  437. 


(123)  See  Moore  v.  Fox,  10  J.  R.  244.  By  the  law  of  Massachusetts,  no  religious  teacher, 
unless  he  be  a  public  protestant  teacher  of  some  legally  incorporated  society,  can  maintain 
an  action  for  any  moneys  assessed  pursuant  to  the  third  article  of  the  declaration  of  rights  ; 
for  although  the  constitution  contemplates  different  denominations  of  protestant  christians', 
yet  no  religious  societies  are  referred  to,  unless  incorporated  ;  and  no  teachers  are  mentioned 
as  existing,  who  are  not  entitled  to  a  maintenance.  Barnes  v.  1st  Parish  in  Falmouth,  C,  Mas--. 
Rep.  401.  Turner  v.  2d  Precinct  in  Brookfield,  7  Mass.  Rep.  60.  Lorcll  v.  Parish  of  Enfield, 
7  Mass.  Rep.  230.  A  minister  ordained  or  appointed  a  teacher  at  large,  to  any  religious 
society  who  may  employ  him,  and  not  ordained  or  appointed  as  the  minister  of  any  particu- 
lar society,  and  having  contracted  with  several  societies  to  preach  a  part  of  the  time  in  each 
cannot  maintain  an  action  for  the  taxes  paid  by  those  who  attend  on  his  instructions  as  their 
pastor  and  teacher,  for  the  support  of  the  minister  of  the  parish  where  they  reside.  Kendall 
v.  Kingston,  5  Mass.  Rep.  524.  Turner  v.  the  second  Precinct  in  Brookfield,  ut  supra  Sanger 
v.  Third  parish  in  Roxbury,  8  Mass.  Rep.  265.  Washburn  v.  4th  Parish  in  W.  Springfield  1 
Mass.  Rep.  32.  But  if  a  public  religious  teacher  officiate  the  whole  of  a  year,  he  wilf  be  en- 
titled to  the  taxes  paid  by  his  parishioners,  although  he  contract  for  a  part  of  a  year  only  at 
a  time.   Sanger  v.  3d  Parish  in  Roxbury,  ut  supra. 


« 


256 


256        Of  Contracts  for  Services  and  Works.         [Part  II. 

by  a  contract  which  was  contrary  to  the  policy  of  the  10'Geo.  2.  c.  28.,  and 
under  which  he  would  have  been  subject  to  heavy  penalties  and  punishments  for 
exhibiting  without  such  license.     If,  however,  the  dancers  at  the   Opera  House 
were  not  considered  to  come  within  that  statute,  then  they  felljvithiif  the  pro- 
hibitions of  25  Geo.  2.  c.  36.  s.  2.  which  enacts,  "  That  every  place,  &c.  kept 
for  public  dancing,  &c.  in  London  and  Westminster,  &c.  without  a  license  from 
the  quarter  sessions,  shall  be  deemed  a  disorderly  place,"   and   persons   found 
therein  may  be  punished.     And  further,  that  the  circumstance  of  the  plaintiffs 
having  another   house  licensed  for  different  purposes,   could  not  avail   as  the 
defendant  had  no  notice  of  any  other  place  than  the  Opera  House  communicat- 
ed to  him.  Against  this  rule  it  was  contended,  by  the  counsel  *for  the    plaintiff, 
that  as  the  contract  was  for  dancing  only,  it  did  not  fall  within  the   meaning  of 
the  10  Geo.  2.,  which  prohibits  "acting,   representing,  and  performing  for  hire, 
gain,  or  reward  of  any  interlude,  tragedy,  comedy,  opera,  play,  farce, "or  other 
entertainments  of  the  stage,"  without  letters  patent  from  the  King,  or  licence 
from  the  Lord  Chamberlain.     All  these  terms,  they  contended,  must  be  confin- 
ed to  written  performances,  or  such  as  were  capable  of  being  reduced  to  writing  ; 
because  by  the  3d  section,  where  the  same  words  are  used,  it  is  required  "  That 
a  true  copy  thereof  shall  be  sent  to  the  Lord   Chamberlain,  fourteen  days,   at 
least,  before  the  acting,  representing,  or  performing  thereof."    Now  that   condi- 
tion cannot  apply  to  such  an  entertainment  as  the  present ;  for  there  can  be  no 
true  copy  of  a  dance.     The  contract  does  not  even  specify  any  particular  sort 
of  dance,  which  might,  perhaps,  have  been   described,   however  inaccurately  ; 
bui.  it  is  for  dancing  generally.     Besides  the  contract  was  not  confined  to  danc- 
ing at  the  Opera  House,  but  it  was  to  be  at  any  place  where  the  plaintiff  chose  : 
and  the  defendant  never  gave  him  the  opportunity  of  choosing  any  other  place 
which  was  licensed,  because  he  never  came  at  all,  or  proffered   himself  to   the 
plaintiff.     Other  persons,  with  whom  the    plaintiff  also  contracted  in   the  like 
manner,  have  recovered  against  him  the  amount  of  their  salaries,   and  no  such 
objection  was  allowed  to  avail  the  plaintiff.     As  to  the  statute  of  the  25  Geo. 
2.  c.  36.  it  does  not  apply  to  this  case  ;  for  the  4th    section  expressly  provides, 
that  the  act  shall  not  extend  to  the  Theatres  Royal  in   Drury  Lane  or  Covent 
Garden,  or  the  theatre  commonly  called  the  King's  Theatre  in  the  Haymarket. 
But  Lord  Kenyon  Ch.   J.  said,  "I  think  the   statute  of  the    10  Geo.  2.   does 
extend  to  this  and  every  other  species  of  stage  entertainment.     The  words  are 
general ;  and  the  intent  of  the  legislature  manifestly  was  to  put  all    places  of 
public  diversion  under  the  control  of  the  magistracy.     The  clause  requiring  a 
copy  of  the  entertainment  to  be  previously   given  to  the  Lord  Chamberlain,  of 
course  can  only  apply  to  such  entertainments  as  are   recited  from  written  per- 
formances ;  and  was  intended  as  an  additional  check  against  a  licentious  use  of 
the  stage.     Possibly  the  notion  of  the  statutes  being  confined  to  such  produc- 
tions, may  have  arisen  from  the  occasion  which  is  supposed  to  have  given  birth 
to  it ;  and  which  was  some  plays  written  by  Mr.  Gay  and  others,  levelled 
against  the    existing  administration,    with   intention  of  bringing   it  into  disre- 

*257 


Chap.  3.J   Of  Contracts  for  Services  and  Works.  257 

pute  with  the  people.  The  subsequent  statute  of  25  Geo.  2.  puts  all  sorts  of 
places,  opened  for  public  diversion,  under  the  direction  and  appointment  of  the 
magistrates  at  large  ;  and  is  applicable  to  other  entertainments  than  those  of 
the  stage.  The  exception  in  the  4th  clause,  that  the  act  shall  not  extend  to 
the  Haymarket  and  the  other  two  Royal  Theatres,  was  inserted  on  a  supposition 
that  they  would  be  licensed  by  the  Lord  Chamberlain  ;  for  the  proviso  goes  on 
to  say,  "  Nor  to  such  performances  and  *public  entertainments  as  shall  be  car- 
ried on  by  virtue  of  letters  patent,  or  license  of  the  crown,  or  the  Lord  Cham- 
berlain." But  the  legislature  evidently  did  not  mean  to  except  these  three 
places,  unless  they  were  licensed.  Under  the  former  act,  no  entertainment  of 
the  stage,  of  which  dancing  is  one,  can  be  exhibited  without  the  Lord  Chamber- 
lain's license  ;  and  none  having  been  obtained  in  this  case,  the  plaintiff  cannot 
call  upon  the  defendant  for  the  breach  of  an  agreement  which,  without  such 
license,  it  was  unlawful  for  him  to  execute.  As  to  the  circumstance  of  other 
performers  having  recovered  on  similar  agreements  against  the  plaintiff  for  their 
salaries,  those  verdicts  are  right ;  for  being  engaged  to  the  plaintiff,  and  ready 
to  execute  the  agreement  on  their  part,  they  ought  not  to  suffer  because  he  did 
not  obtain  a  license,  which  it  was  his  business  to  have  procured. 

12.  By  Schoolmasters.] — If  part  of  the  terms  of  a  school  establishment 
is,  "  that  a  quarter's  notice  shall  be  given  before  the  removal  of  a  pupil,  or  to 
pay  for  a  quarter"  ;  and  a  father,  knowing  of  these  terms,  removeshis  son  with- 
out such  notice  or  payment,  he  is  liable  to  an  action  for  the  amount  under  a 
general  count  of  indebitatus  assumpsit.  Thus,  in  the  case  of  Eardly  v.  Price,(n) 
which  was  an  action  of  assumpsit,  and  the  plaintiff  declared  first  upon  an  inde- 
bitatus count  for  board  and  schooling  generally ;  and,  secondly,  that  in  consid- 
eration that  the  plaintiff,  at  the  request  of  the  defendant,  had  received  and  taken 
J.  W.  as  a  scholar  into  a  certain  school  or  academy  kept  by  the  plaintiff,  and 
that  J.  W.  had  left  the  same  without  giving  due  notice  in  that  behalf,  the  defen- 
dant promised  to  pay  the  plaintiff  so  much  money  as  he  therefore  reasonably 
deserved  to  have.  There  were  also  general  counts  for  work  and  labour,  and 
for  money  had  and  received.  The  cause  was  tried  before  Sir  James  Mansfield 
Ch.  J.,  when  the  terms  of  the  plaintiff's  school  were  given  in  evidence,  by  which 
it  appeared,  that  30/.  a  year  were  to  be  paid  for  each  scholar  ;  and  at  the  foot 
of  the  terms  was  added  this  stipulation  :  "  A  quarter's  notice  is  required  to  be 
given  before  the  removal  of  any  young  gentleman  from  school,  or  to  pay  for  a 
quarter.1'  James  Wyalt  having  been  removed  without  notice,  the  plaintiff 
claimed  a  right  to  recover  ll.  10;.,  pursuant  to  the  above  stipulation.  On  the 
part  of  the  defendant  it  was  objected,  that  no  damages  could  be  recovere  1  upon 
the  general  counts,  but  for  what  had  been  actually  furnished,  and  that  there  was 
no  special  count  in  the  declaration  so  framed  as  to  meet  the  plaintiff's  demand. 
The  Chief  Justice  overruled  the  objection,  and  a  verdict  was  found  for  the 
plaintiff.     And  the  Court  afterwards,  on  a  motion  being  made  for  a  new  trial 


(n)  2  New  Rop.  333. 

•258 


258  Of  Contracts  for  Services  and  Works.    [Part  11. 

confirmed  the  verdict.  And  Chambre  Just,  said,  "  The  contract  in  this  case 
being  no  longer  executory  at  the  time  when  the  demand  arose,  the  objection, 
founded  upon  the  stipulation  being  matter  of  special  contract,  does  not  apply." 
*13.  By  Printers.] — By  the  general  usage  of  the  printing  trade,  a  printer 
is  not  entitled  to  be  paid  for  any  part  of  his  work  until  the  whole  is  completed 
and  delivered.  And  this  custom  has  been  holden  to  be  the  law  of  the  trade  ; 
and  as  far  as  it  extends,  it  controuls  the  general  law  :  and  therefore  if  a  work 
is  accidentally  consumed  by  fire  before  it  is  entirely  printed  off,  the  printer  can- 
not recover  any  thing  for  his  labour  in  printing.  This  was  settled  in  the  case 
of  Gillctt  v.  Maw?nan.(o)  (124) 

14.  By  Apprentices.] — If  a  person  wrongfully  acquires  the  labor  of  an 
apprentice,  by  having  seduced  and  harboured  him  from  his  master's  service,  he 
is  liable  either  to  an  action  of  tort,  for  special  damages  for  the  seduction,  or  to 
an  action  of  indebitatus  assumpsit,  for  the  earnings  of  the  apprentice,  at  the 
election  of  the  master.  Thus,  in  the  case  of  Lightly  v.  Clouslon,(p)  which 
was  an  action  of  indebitatus  assumpsit  for  work  and  labour  performed  for  the 
defend  an*,  at  his  request  by  one  Thomas  Sinclair  the  apprentice  of  the  plaintiff, 
under  an  indenture  of  apprenticeship  for  a  term  of  years,  which,  at  the 
time  of  the  work  being  performed,  were  unexpired.  The  defendant  se- 
duced the  apprentice  from  on  board  the  plaintiff's  ship  in  Jamaica,  and  employ- 
ed him  as  a  mariner  to  assist  in  navigating  his  own  ship  from  Port  Royal, 
home.  The  cause  was  tried  before  Mansfield  Ch.  J.  and  the  jury  found  a  ver- 
dict for  the  plaintiff,  subject  to  the  opinion  of  the  Court  on  the  following  ob- 
jection, namely,  that  the  plaintiff  ought  to  have  declared  in  a  special  action  on 
the  case ;  and  that  indebitatus  assumpsit  would  not  lie.  The  Court,  however, 
determined  that  the  plaintiff  had  declared  properly,  and  that  the  action  was 
maintainable. 

So,  in  the  case  of  Foster  v.  Stewart, (q)  which  was  also  an  action  of  as- 
sumpsit  for  work  and  labour  by  the  plaintiff  and  his  servant,  and  the  money 
counts.  And  at  the  trial,  it  was  proved,  that  the  plaintiff's  apprentice  deserted 
from  the  plaintiff's  ship,  and  went  on  board  the  defendant's,  and  secreted  him- 
self until  the  defendant's  ship  sailed,  when  he  discovered  himself  to  the  de- 
Co)  1  Taunt.  137.  (q)  3  Maule  &  Sel.  191. 
(p)  lb.  112. 

(124)  Where  A.  agreed  to  work  forB.  10  1-2  months,  and  spin  yarn  at  3  cents  per  run  ; 
and  afterwards,  and  before  the  term  of  service  expired,  left  the  employment  of  B.,  and 
brought  an  action  against  him  for  spinning  845  runs  of  yarn,  at  the  stipulated  price  ;  it  was 
held,  that  the  contract  was  entire,  and  must  be  performed  as  a  condition  precedent,  before 
the  plaintiff  could  sustain  his  action  for  the  price  of  his  labor.  MMUlan  v.  Vanderlip,  12  J. 
R.  165.  But,  where  the  defendant  hired  the  plaintiff"  to  work  for  him,  for  one  year,  atone 
dollar  per  day  ;  and  it  was  also  agreed,  that  the  parties  should  settle  once  in  three  or  four 
months  ;  and  at  the  expiration  of  about  three  months,  the  parties  computed  the  amount 
due  to  the  plaintiff,  for  which  the  defendant  gave  his  promissory  note ;  and  shortly  after- 
wards, the  plaintiff  left  the  defendant's  service  without  his  consent:  In  an  action  on  the 
note  ;  it  was  held  not  to  be  a  valid  defence,  that  the  plaintiff  had  thus  left  the  defendant's 
service  before  the  expiration  of  the  year.  Thorpe  v.  White,  13  J.  R.  53.  S.  P.  Jennings  v. 
Campb,   13  J.  R.  94.     See  Webb  v.  Duckingteld,  13  J.  R.  309. 

*259 


Chap.  3]     Of  Contracts  for  Services  and  Works*  259 

fend  ant,  who  carried  him  to  Halifax,  to  which  place  he  worked  his  passage, 
receiving  his  food  ;  and  during  the  passage,  the  plaintiff's  and  defendant's  ships 
were  within  hail,  but  the  defendant  did  not  make  known  to  the  plaintiff  that 
he  had  his  apprentice  on  board  ;  and  on  the  arrival  of  the  defendant's  ship  at 
Halifax,  the  apprentice  wished  to  leave  ;  but  defendant  persuaded  him  to  re- 
main, promising  him  either  wages  or  clothes  and  pocket-money  ;  under  which 
persuasion  the  apprentice  sailed  with  him  to  England,  and  did  duty,  as  one  of 
the  crew,  but  received  no  wages  or  clothes  or  pocket-money.  It  was  deter- 
mined, that  the  plaintiff  was  entitled  to  waive  the  tort,  and  bring  assumpsit 
against  the  defendant  for  the  work  and  labour  of  his  ^apprentice,  and  to  recover 
a  reasonable  compensation  for  the  service  of  the  apprentice  from  Halifax  to 
England. 

15.  By  Bailiffs  of  Cities,  in  providing  Booths,  &c.  at  Elections.] 
— A  candidate  at  an  election  for  members  of  parliament  is  not  liable  for  any 
part  of  the  expenses  of  the  election,  except  by  positive  statute,  or  his  own  un- 
dertaking, notwithstanding  a  long  usage  for  the  expenses  being  ratably  defray- 
ed by  the  candidates.  But  a  candidate  to  represent  a  city  or  a  borough  in  par- 
liament is  liable  for  a  share  of  the  expense  of  administering  oaths  to  Roman 
catholic  electors,  under  34  Geo.  3.  c.  73.  and  if  he  makes  use  of  hustings, 
erected  by  the  returning  officer  for  the  accommodation  of  himself  or  his  agents, 
a  promise  on  hi3  part  will  be  inferred  to  contribute  to  the  expense  of  erecting 
them,  (r) 

16.  For  procuring  the  Sale  of  an  Estate,  or  an  Annuity  ;  or  obtaining 
a  Tenant,  &.c] — A  promise  to  pay  a  sum  of  money  in  consideration  of  the 
procuring  a  particular  purchase  is  valid  ;  and  when  the  purchase  is  completed, 
an  action  of  indebitatus  assumpsit  for  work  and  labour  will  lie  against  the  par- 
ty promising:  thus,  in  the  case  of  Gordon  vt  Martin, (s)  which  was  an  action 
of  indebitatus  assumpsit  for  work  and  labour.  The  plaintiff  proved  a  letter 
from  defendant  to  him  to  t.-is  effect:  "  If  L.  S.  shall  go  through  the  purchase, 
(the  defendant's  brother  having  been  then  in  treaty  with  the  said  L.  S.  for  the 
sale  of  an  estate,)  my  brother  will  give  you  a  handsome  gratuity  for  the  trouble 
and  pains  you  shall  be  at  in  transacting  that  affair,  which  I  promise  and  as- 
sure you  shall  not  be  less  than  300/."  And  by  way  of  postscript,  as  follows  :. 
"  My  meaning  is,  you  shall  be  paid  when  the  conveyances  shall  be  executed." 
It  was  also  proved,  that  the  plaintiff  had  forwarded  the  said  purchase,  and  that 
L.  S.  was  greatly  induced  thereto  by  the  good  opinion  he  had  of  the  plaintiff's 
veracity  and  judgment,  and  his  recommendation  of  the  said  purchase  ;  and 
whether  this  evidence  maintained  the  declaration,  was  saved  for  the  opinion  of 
the  Court.  The  Court  held,  that  though  the  promise  was,  that  the  defendant's 
brother  should  pay  the  gratuity,  yet  it  bound  the  defendant  as  much  as  if  he 
had  promised  for  himself;  for  the  work  and  labour  was  at  his  request,  and  up- 
on his  credit :   and  Mr.   Justice  Lee    said,  "  That   there  was  a   difference  be- 


(c)  Morris  v.  Burdett,  Bart.  1  Campb.  218.         (s)  Fitzg.  302. 

33  •960 


£60         Of  Contracts  jot    Services  and  Works.    [Part  II. 

tween  a  conditional  and  an  absolute  undertaking  ;  as  if  A.  promise  to  B.  such 
a  sum,  if  C.  does  not,  there  A.  is  but  a  security  for  C.  :  but  if  A.  promise  that 
C.  will  pay  such  a  sum,  A.  is  the  principal  debtor ;  for  the  act  done  was  on  his 
credit,  and  no  way  upon  C.  That  an  indebitatus  assumpsit  will  not  lie  upon 
a  special  agreement  till  the  terms  of  it  are  performed  ;  but  when  that  is  done, 
it  raises  a  duty  for  which  a  general  indebitatus  assumpsit  will  lie  :"  and  by 
the  whole  Court  the  plaintiff  had  judgment. 

*So,  an  action  will  lie  upon  a  promise,  in  consideration  that  A.  would  procure 
for  B.  the  enjoyment  of  a  house,  with  an  averment  that  he  had  procured  it.(f) 
Or,  that  he  would  procure  a  tenant  for  B.,  and  get  him  a  sum  of  money  for  the 
lease  of  certain  premises,  (u) 

So,  if  A.  promise  B.  10/.,  in  consideration  that  he  would  procure  him  one 
who  would  give  him  an  annuity  of  100/.  per  annum  for  900/.  B.  does  not  do 
it,  but  procures  him  one  who  grants  it  for  1000/.,  and  A.  does  agree  for  that 
annuity,  B.  cannot  bring  an  assumpsit  for  the  10/.  because  this  varies  from  the 
contract ;  but  he  may  have  a  quantum  meruit,  (v)  Again,  in  Webb's  case, (w) 
where  the  plaintiff  declared,  that  whereas  Cobham  was  indebted  to  J.  S.,  and 
J.  S.  to  the  defendant,  the  said  defendant,  in  consideration  that  the  plaintiff 
would  procure  the  said  J.  S.  to  make  a  letter  of  attorney  to  the  defendant  to 
sue  the  said  Cobham,  promised  to  pay  and  give  to  the  plaintiff  10/.  It  was  ob- 
jected, here  was  not  any  consideration  for  the  assumpsit ;  for  the  defendant,  by 
this  letter  of  attorney,  gets  nothing  but  his  labour  and  travel  :  but  the  exception 
was  not  allowed  of;  for  in  this  case,  not  so  much  the  profit  which  redounds  to 
the  defendant,  as  the  labour  of  the  plaintiff  in  procuring  of  the  letter  of  attor- 
ney is  to  be  respected. 

So,  in  Bartlett  v.  Viner,(x)  upon  a  motion   in  arrest  of  judgment,    the  case 
was,  an  action  brought  by  the  administrator  of  Bartlett  against   the  executors 
of  Sir  Robert  Viner  ;  upon  such  a  promise  made  by  Sir  Robert  to  the  intestate, 
soil :  "  If  you  will  procure  15,000/.  to  be  paid  into  the  exchequer,  upon  the  aid 
of  12c?.  in  the  pound,  in  my  name,  or  the  name  of  such  person  as  I  shall  direct, 
I  will  give  you  600/.  &c."     Upon  the  trial,  a  verdict  was  given  for  the  plain- 
tiff; and  Darnell  said  that  the   action   did  not  lie,  because  itisbrokage,  and 
against  the  statute  of  usury  ;  and  it  being  a  promise  against  law,  it  is  not  obli- 
gatory.    But  upon  consideration  of  the  case,  the  Court  seriatim  delivered  their 
opinion,  that  the  plaintiff  ought  to  have  his  judgment ;  "  for  nothing  appears 
kere  in  the  declaration  against  law  •  for  the  borrower  does  not  pay  brokage,  nor 
the  lender  receive  it ;  but  the  agreement  is  between  two  persons  not  concerned 
but  only  in  the  procuring  the  money ;  and  this  was  an  advantage  to  the  defen- 
dant, and  might  be  in  many  cases." 


(A  Yel.  II. 

(u)  1  Taunt.  18. 

(©}  Per  Pcnrdl  Jurt.  18M«d..50e. 

*26l 


(y>\  4  Leon.  110. 

(x)  Skin.  322.  Carta.  &S1.S.  C. 


Chap.  3.]      Of  Contracts  for  Services  and  Works.        261 

2.  OF    SERVICES    AND    WORKS    PERFORMED,    FOR    WHICH    NO    ACTION    LIES. 

Besides  those  cases  which  have  come  in  review  in  the  first  division  of  this 
subject,  in  which    we  have  seen  that  no  action  lies  for  services  rendered,  *as  for 
instance,   by  a  physician,  &c,  there  are  others  of  a  different  description,  such 
as   where  a  man  requests  A.  to  procure   administration   to  be   granted  to   the 
wife  of  B.  as  next  of  kin  to  C,  and  would  furnish  evidence  to  enable  B.   and 
his  wife  to   receive  the  dividends  ;  B.  and   his  wife,  as   such   administratrix, 
promised  to  pay  over  to  A.  the   amount  of  the   dividends  when  received.     It 
was  held,  that  the  consideration  was  insufficient  to  sustain  such  a  promise,  (y) 
So,  no  action  will  lie  to  recover  a  sum  of  money  for  endeavouring  to   obtain 
a  pardon.     Thus,  in  the  case  of  Norman  v.  Cole,(z)  which  was  an   action  of 
assumpsit  for  money  had  and  received,  to  recover  a  sum  of  30Z.  which  had  been 
deposited  in  the  hands  of  the  defendant,  under  the  following  circumstances  :  One 
Tunstall  being  under  sentence  of  death,  in  Newgate,  the  plaintiff  was  prevail- 
ed upon  to  lodge  that  sum  in   the  hands  of  the  defendant,    to  be  applied  to  the 
purpose  of  procuring  him  a  pardon.     On  the  case    being  opened,  Lord  Eldon 
Ch.  J.  expressed  a  doubt  whether  the  action  was    maintainable,  saying,  "  that 
he  would  hold  the  plaintiff  to  very  strict  proof  of  the    means    used  to   procure 
the  pardon;"  and  called  on   the  plaintiff's  counsel  to  shew  upon  what  grounds 
they  founded  their  right  to  recover.     They  stated  that    Tunstall  was  a   man  of 
good  character  before  his  conviction ;  that  one  Morland  being  a  person  of  good 
connections,   and  having  access  to  persons  of  interest,  the   money  was  to  be 
given  to  him  for  so  using  his  interest,  by  representing,  in   favourable  terms,  the 
case   and   character    of    Tunstall.     Lord  Eldon  Ch.  J.  then  said,  "  I  cannot 
suffer  this  cause  to  proceed.     I  am  of  opinion,  this  action  is  not  maintainable  : 
where  a  person   interposes  his  interests   and  good  offices  to  procure  a  pardon,  it 
ought  to  be  done    gratuitously,  and  not  for  money :  the  doing  an  act  of  that 
description  should  proceed  from  pure  motives,  not  from  pecuniary  ones.     The 
money  is  not  recoverable." 

So,  an  agreement  to  pay  a  per-centage  upon  the  day  on  which  any  money 
should  be  received  by  the  defendant  through  the  means  of  the  plaintiffs  infor- 
mation, does  not  entitle  the  plaintiff  to  the  stipulated  reward  upon  the  transfer 
of  stock,  in  consequence  of  such  information,  although  he  might  afterwards 
receive  the  dividend  thereon.  Thus,  in  the  case  of  Jones  v.  Brinley,{a)  the 
plaintiff  declared  upon  a  special  agreement,  that  in  consideration  that  he  had 
stated  to  the  defendant  that  it  was  in  his  (the  plaintiff's)  power  to  give  the 
defendant  certain  information  which  might  enable  one  F.  N.  to  receive  a  con- 
siderable sum  of  money  then  due  to  him,  and  also  in  consideration,  that  the 

(y)  2Bos.&Pul.  73.  v.   Braithieaitc,  Hob.    105.   Moor,  866.  Sty. 

(z)  3Esp.  Rep.  %3.   Sed  vide   Lampkigk     165. 

(*)   1  East  Rep.  1. 

•262 


262         Of  Contracts  for  Services  and   Works.       [Part  U» 

plaintifT  at  the  request  of  the  defendant  would  give  such  information  to  the  de- 
fendant as  might  enable  the  sai.l  F.  N.  to  receive  the  said  sum,  the  defendant 
*undertook  and  promised  the  plaintiff  to  pay  him  on  the  day  upon  which  any 
money  should  be  received  by  F.  N.,  or  by  tne  defendant  on  F.  N.'s  behalf, 
through  the  means  of  the  plaintiff's  information,  the  sum  of  10/.  per  cent,  on 
the  money  so  received.  The  declaration  then  averred  that  the  plaintiff  did 
give  the  defendant  certain  information  respecting  divers  sums  of  money  which 
F.  N.  was  entitled  to  receive  under  and  by  virtue  of  the  last  will  and  testament 
of  one  A.  N.,  deceased,  and  that  if  F.  N.,  through  the  means  of  such  informa- 
tion, on  the  27th  January,  1800,  did  receive  the  sum  of  500/.  whereby  the  de- 
fendant by  virtue  of  his  promise  became  liable  to  pay  to  the  plaintiff  50/.,  &c. 
The  second  count  stated  more  generally,  that  the  defendant  was  indebted 
to  the  plaintiff  in  so  much  for  certain  information  given  by  the  plaintiff  to  the 
defendant  at  his  request,  whereby  F.  N.  was  enabled  to  receive,  and  did  accor- 
dingly receive  divers  large  sums  before  then  due  to  him,  and  being  so  indebted 
the  defendant  promised,  &c,  There  was  also  the  general  money  counts,  ar.d 
for  work  and  labour.  The  defendant  pleaded  the  general  issue.  At  the  trial, 
before  Lovd  Kcnyon  Ch.  J.  the  agreement  in  writing  was  proved,  whereby  the 
defendant  "  undertook  to  pay  to  the  plaintiff  on  the  day  upon  which  any  money 
should  be  received  by  F.  N.  or  by  him  (the  defendant)  on  his  behalf,  through 
the  means  of  the  plaintiff's  information,  the  sum  of  10/.  per  cent,  on  the  money 
which  should  be  so  received."  It  was  also  proved,  that  in  consequence  of  in- 
formation given  by  the  plaintiff  to  the  defendant,  F.  N.  had  obtained  500/. 
stock,  which  had  stood  in  the  name  of  A.  N.,  from  whom  the  defendant  de- 
rived title  as  residuary  legatee ;  and  evidence  was  adduced  for  the  purpose  of 
showing,  that  he  had  afterwards  received  ten  years'  dividends  due  thereon. 
It  was  objected  by  the  defendant's  counsel  that  it  was  stock,  and  not  mon- 
ey, which  had  been  obtained  through  the  medium  of  the  plaintiff's  informa- 
tion, and  therefore  he  was  not  entitled  to  recover  any  thing  under  the  terms 
of  the  agreement ;  and  that  the  dividends  were  merely  consequential  to  the 
stock  :  and  it  was  not  the  meaning  of  the  parties  that  10/.  per  cent,  should  be 
paid  upon  all  the  interest  which  might  accrue,  but  merely  for  the  principal 
sum,  if  any.  Lord  Kcnyon  admitted  the  objection,  rand  nonsuited  the  plaintiff. 
A  motion  was  afterwards  made  to  set  aside  the  nonsuit,  upon  the  ground  that 
the  proof  sustained  the  agreement  ;  for  stock  was  to  be  estimated  as  so  much 
money,  into  which  it  was  convertible  ;  and  that  at  any  rate  the  receipt  of  the 
dividends,  due  at  the  time  of  the  transfer  of  the  stock,  was  a  receipt  of  so  much 
money  within  the  meaning  of  the  agreement.  But  the  Court  thought  the  ob- 
jection well  founded  \  and  animadverted  upon  the  immorality  of  such  bargains 
as  the  one  in  question,  which  had  grown  of  late  into  practice. 

So,  where  services  are  performed  voluntarily,  and  not  with  any  view  of  im* 
mediate  reward,  but  merely  in  expectation  of  a  legacy  ;  and  the  *person  for 
whom  they  are  done  dies  without  leaving  such  expected  legacy,  no    action  will 

♦263  *204 


Chap.  3.]     Of  Contracts  for  Services  and  Works.  263 

lie  against  the  executor  or  administrator  for  a  recompence  for  such  services.(125) 
Thus,  in  the  case  of  Osborne  v.  the  Governors  of  Guifs  Hospital, (b)  which 
was  an  action  of  indebitatus  assumpsit  for  work  and  labour  in  transacting  Mr. 
Guy's  stock  affairs  in  the  year  1720.  It  appeared  that  the  plaintiff  was  no  bro- 
ker but  a  friend  ;  and  it  looked  strongly,  as  if  he  did  not  expect  to  be  paid,  but 
to  be  considered  for  it  in  his  will.  And  the  Chief  Justice  directed  the  jury, 
"  that  if  that  was  the  case,  they  could  not  find  for  the  plaintiff,  though  nothing 
was  given  him  by  the  will ;  for  they  should  consider  how  it  was  understood  by 
the  parties  at  the  time  of  doing  the  business  ;  and  a  man  who  expects  to  be 
made  amends  by  a  legacy,  cannot  afterwards  resort  to  his  action." 

So,  in  the  case  of  Hiccox  v.  Proud,  (c)  which  was  an  action  of  assumpsit  on 
an  apothecary's  bill  for  medicines  and  attendance.  It  appeared  that  the  plain- 
tiff had  never  made  any  regular  entries  in  his  books,  but  had  attended  the  tes- 
tator in  expectation  of  a  legacy,  he  being  related  to  him  ;  and  that  he  had 
declared,  that  had  the  testator  left  him  any  thing,  he  would  never  have  made 
a  charge.  The  plaintiff*  was  nonsuited  on  the  principle  laid  down  in  the  last 
case.  But  in  the  case  of  Le  Sage  v.  Cousmaker  and  others,  executors, (d) 
which  was  an  action  of  assumpsit  for  work  and  labour,  the  case  was  as  follows  : 
The  defendants  weie  the  executors  of  one  Vanveyhever.  The  plaintiff  was  a  stock- 
broker, and  in  the  life-time  of  the  testator,  had  transacted  all  his  money  concerns 
to  a  considerable  extent ;  it  was  also  given  in  evidence,  that  he  had  been  em- 
ployed by  the  testator  in  several  matters,  such  as  keeping  his  books,  transla- 
ting his  letters,  <fcc.  and  that  he  was  also  in  the  habit  of  doing  for  him  sever- 
al acts  of  attention,  and  rendering  him  many  services  of  that  nature.  The  de- 
fendants resisted  the  plaintiff's  demand  on  the  grounds  that  the  testator  being 
a  man  of  very  great  wealth  and  uncommon  parsimony,  a  foreigner,  and  without 
a  relation,    that  the  several  services    upon   which    the    plaintiff  grounded    his 


(b)  Stra.  728.  Just.  Esp.  N.  P.  87. 

(c)  Staff.  Lent  Ass.    1762,   cor.  Wilmot         (d)  1  Esp.  Rep.  187. 

(125)  Where  services  arc  rendered  merely  in  expectation  of  a  legacy,  without  any  con- 
tract express  or  implied,  but  relying  wholly  on  the  testator's  generosity,  an  action  for  such 
services,  cannot  be  maintained  against  the  executor.  Little  v.  Dawson,  4  Dall.  111.  See 
Paltersonv.  Patterson,  13  J.  R.  379.  But  where  services  are  performed  by  a  son  for  the  fa- 
ther, under  an  expectation  of  a  compensation,  and  the  father  promises  to  reward  him  well,  and 
provide  for  him  in  his  will,  it  seems,  that  the  son  may,  after  the  death  of  the  father,  main- 
tain assumpsit  against  his  executors.  Id.  So,  where  services  are  performed,  though  in  ex- 
pectation of  a  legacy,  yet  if  done  at  the  request  of  the  testator,  assumpsit  will  lie.  Roberts 
v.  Swift,  1  Yeates,  203.  So,  where  the  testator  promises  to  pay  for  services  rendered,  though 
done  in  expectation  of  a  legacy  ;  and  it  is  immaterial  whether  the  promise  be  made  before  or 
after  the  performance  of  the  service.  Snyder  v.  Castor,  4  Yeates,  353,358.  A  young  man, 
at  the  request  of  his  uncle,  went  into  his  service,  and  worked  for  him  above  eleven  years  ; 
and  his  uncle  said  that  his  nephew  should  be  one  of  his  heirs,  and  spoke  of  advancing  a  sum 
of  money  to  purchase  a  farm  for  him  ;  but  died  without  making  any  provision  for  him  ;  held, 
that  an  action  on  an  implied  assumpsit  in  favor  of  the  nephew  against  his  uncle's  executors, 
would  lie.  Jacobsonv.  Exrs.  of  Le  Grange,  3  J.  R.  199.  And  so,  an  action  will  lie  by  an  il- 
legitimate child  against  the  administrators  of  his  putative  father,  on  a  promise  of  the  intes- 
tate, made  in  consideration  of  work  and  labor  performed  by  the  child,  during  his  minority. 
Conrad  v,  Conrad,  4  Dall.  130, 


264        Of  Contracts  for  Services  and  Works.       [Part  II. 

action  were  gratuitous,  and  done  solely  with  a  view  to  a  legacy  on  the   testa- 
tor's death.     It  was  further  relied  on,  that  a  bill  having  been  filed  by  the  execu- 
tors, all  the  creditors    of  the  testator's  estate    had    been   called   upon    under  a 
reference  to  a  Master  in  the  Court  of  Chancery,  to  put  in  their  several    claims, 
and  that  the   plaintiff,  having  made   his  claim,  the   Master   had   disallowed  it. 
And  the  counsel  for  the  defendants  contended,  first,  that  the    legacy    must  be 
taken  as  a  complete  satisfaction;  and,  secondly,  that  the  reference  to  the  Mas- 
ter must  be  considered  as  the  referring  of  claims  to  an  arbitrator  ;  and  he  having 
awarded  nothing  to  be  due  to  *the  plaintiff,  that  it  was  a  complete  answer  to  the 
case.     He  then  gave  in  evidence  the  payment  of  a  legacy  of  400/.  to  the  plain- 
tiff", under  the  testator's  will,  and  also  the  Master's  report,  by  which  he  disallow- 
ed the  plaintiff's  claim  against  the  estate.     But  Lord  Kenyon  Ch.  J.  ruled,  that 
neither  was  an  answer  to   the  plaintiff's   demand:  "that  a  legacy   was  never 
deemed  a  satisfaction  for  a  legal  demand,  when  that  demand  was  unliquidated 
at  the  time  of  the   legacy  given,  nor  where  it  was  given  before  the    time 
when  the  demand  accrued,  or  the  debt  was  contracted,  unless  it  was  expressly 
said  in  the  will  that  it  should  be  a  satisfaction  ;  that  nothing  in  this  case  appear- 
ed which  could  operate  as  an   ademption  of  the  legacy.     As  to  the  Master's 
report,"  his  Lordship  said,  "  it  established  nothing ;  that  the  party  should  never 
be  concluded  by  it  from   suing  in  the  regular  course  of  law  for  his  demand, 
though  the  Master  might  think  fit  to   report  that  nothing  was  due.     His  Lord- 
ship added,  that  the  law  was  well  settled  ;  that  if  the  plaintiff  had  undertaken  the 
several  services  proved,  without  any  view  to  a  reward,  but  with  a  view  to  a 
legacy,  that  he  could  not  set  up  any  demand  against  the   testator's  estate,  but 
of  that  the  jury  were  to  decide."     The  jury  found  for  the  plaintiff  600/.   dam- 
ages. 

So,  where  A.  employs  B.  to  show  his  house  which  is  to  let,  and  for  his 
trouble  promises  that  he  will  make  him  a  handsome  present ;  this  is  evidence 
of  a  contract  to  pay  a  reasonable  compensation  in  an  action  of  assumpsit  en 
a  quantum  meruit,  (e) 


(e)  Jewry  v.  Busk,  5  Taunt.  302. 
'265 


Chap.  4.]       On  Promises  To  Pay  Over  Money,    $c.     266 


♦CHAPTER  IV. 


ON  PROMISES  TO  PAY  OVER  MONEY  HAD  AND  RECEIVED  TO  THE 
USE  OF  ANOTHER:  AND  IN  WHAT  CASES  AN  ACTION  OF  INDEBITA- 
TUS ASSUMPSIT  LIES  THEREON. 

If  a  person  receives  money,  or  something  which  has  been  converted  into 
money,  belonging  to  another,  and  has  no  legal  or  equitable  right  to  retain  it,  the 
law  deems  this  to  be  so  much  money  had  and  received  to  the  use  of  the  true  pro- 
prietor thereof,  and  raises  a  promise  by  implication,  on  the  part  of  the  receiver,  to 
pay  it  over  to  him  ;  and  upon  his  refusal  to  do  so,  an  action  of  indebitatus 
assumpsit  will  lie  against  him  at  the  suit  of  the  rightful  owner,  as  for  money 
had  and  received  to  his  use.  It  is  observed,  by  the  learned  commentator  upon 
the  laws  of  England,  "  That  this  form  of  action  is  a  very  extensive  and  bene- 
ficial remedy,  applicable  to  almost  every  case  where  a  person  has  received 
money  which  ex  aquo  et  bono  he  ought  to  refund."  («)  And  Lord  Mansfield, 
who  very  much  encouraged  this  form  of  action,  has  often  declared,  ''  That 
great  benefit  arises  from  this  species  of  action,  because  the  charge  and  defence 
are  both  governed  by  the  true  equity  and  conscience  of  the  case.  And  in  this 
form  of  action  the  plaintiff  is  not  obliged  to  set  forth  in  pleading  the  special 
circumstances  from  which  he  concludes,  that  ex  aequo  et  bono  the  money  receiv- 
ed by  the  defendant  ought  to  be  deemed  as  belonging  to  him  ;  but  he  is  at  lib- 
erty to  declare  generally,  '  that  the  money  was  received  to  his  use,'  and  to 
make  out  his  case  by  evidence  at  the  trial.  It  is  also  equally  beneficial  to  the 
defendant,  and  the  most  favorable  mode  in  which  he  can  be  sued  ;  for  he  can 
be  liable  no  further  than  the  money  he  has  received ;  and  he  is  entitled,  under 
the  plea  of  the  general  issue  of  non  assumpsit,  to  give  all  the  circumstances  of 
his  case  in  evidence ;  he  may  claim  every  equitable  allowance  :  in  short  he 
may  defend  himself  by  every  thing  which  shows  that  the  plaintiff,  ex  <tquo  et 
bono,  is  not  entitled  either  to  the  whole  or  any  part  of  his  demand." (6)  The 
courts,  *howevcr  take  care  that  this  general  mode  of  pleading  do  not  turn  to  the 
prejudice  of  the  defendant :  and  therefore  this  form  of  action  will  not  lie,  where 
it  would  throw  the  burden  of  special  pleading  from  the  plaintiff  upon  the  defen- 
dant, or  where  it  would  subject  him  to  uncertainty,  as  to  the  point  to  which  he 


(a)  3B1  Com.   163.  (h)  2  Burr.  1010.  Doug.  138.4  Burr.  2134. 

1  Bos.  &  Pul.  306.  2  Bos.  &  Pul.  472. 

*266  *267 


267  On  Promises  To  Pay  Over  Money     [Part  II. 

sheuld  direct  his  defence ;  or  where  it  would  trench  upon  established  forms,  or 
otherwise  introduce  inconvenience  upon  principles  of  legal  policy,  (c) 

The  cases  on  this  subject  are  so  numerous,  and  extend  to  such  a  vast  variety 
of  transactions,  that  it  is  somewhat  difficult  to  class  them  in  such  a  manner  as 
to  render  the  division  clear  and  intelligible  to  the  reader.  I  have,  however,  en- 
deavoured to  effect  this  object ;  and  I  now  propose  to  consider  and  arrange  the 
subject  in  the  following  order  :  viz. 

1.  OF  MONEY  HAD  AND  RECEIVED  BELONGING  TO  ANOTHER,  AND 
WHICH  EITHER  OUGHT  TO  BE  PAID  TO  HIM  OR  TO  BE  APPLIED  TO 
A  PARTICULAR  PURPOSE:  AND  OF  MONEY  DEPOSITED  WITH  A 
STAKE-HOLDER  :  AND  IN  WHAT  CASES  SUCH  MONEY  IS  RECOVER- 
ABLE FROM  THE  RECEIVER  IN  AN  ACTION  OF  INDEBITATUS  AS- 
SUMPSIT. 

2.  THIS  FORM  OF  ACTION  LIES  ONLY  WHERE  MONEY  HAS  BEEN  RE- 
CEIVED IN  THE  FIRST  INSTANCE  ;  OR  WHERE  GOODS,  &c.  THE  PRO- 
PERTY OF  ANOTHER,  HAVE  BEEN  EITHER  ACTUALLY  SOLD  OR  DIS- 
POSED OF ;  OR  WHERE,  UNDER  PARTICULAR  CIRCUMSTANCES,  IT 
MAY  BE  REASONABLY  PRESUMED  THAT  THEY  HAVE  BEEN  CON- 
VERTED INTO  MONEY. 

3.  OF  MONEY  OR  A  DEBT  DUE  FROM  ONE  PERSON  TO  ANOTHER, 
WHICH,  BY  AGREEMENT,  IS  EITHER  DIRECTED  OR  APPROPRIATED 
TO  BE  PAID  OVER  TO  A  THIRD  PERSON  :  AND  IN  WHAT  CASES  IT 
SHALL  BE  DEEMED  AS  SO  MUCH  MONEY  HAD  AND  RECEIVED  TO 
THE  USE  OF  THAT  PERSON. 

4.  OF  MONEY  RECEIVED  AND  PAID  BY  BANKERS  AND  OTHERS  UPON 
OR  IN  RESPECT  OF  BILLS  OF  EXCHANGE,  PROMISSORY  NOTES, 
CHECKS,  OR  OTHER  SECURITIES  :  AND  WHEN  SUCH  MONEY  IS  RE- 
COVERABLE IN  THIS  FORM  OF  ACTION. 

5.  OF  MONEY  RECEIVED  ON  BANKERS'  CHECKS,  BILLS  OF  EXCHANGE, 
PROMISSORY  NOTES,  OR  OTHER  SECURITIES  EITHER  POST  DATED, 
OR  WITH  FICTITIOUS  OR  FORGED  NAMES  THEREON. 

*6.  OF  MONEY  RECEIVED  BY  OR  FROM  AGENTS,  SERVANTS,  AND 
OTHERS,  ACTING   FOR  THEIR  PRINCIPALS. 

7.  OF  TRUST  MONEY  RECEIVED;  AND  IN  WHAT  C  ASES  RECOVERABLE 
BY  ACTION  OF  ASSUMPSIT. 

9.  OF  THE  PRODUCE  OF  AN  ADVENTURE  IN  THE  SOUTH  ERN  WHALE 
FISHERY  BETWEEN  THE  CAPTAIN  AND  HIS  CREW,  SOLD  BY  THE 
OWNER  AS  THEIR  AGENT  :  AND  OF  THE  SEAMEN'S  REMEDY  TO  RE- 
COVER THEIR  INDIVIDUAL  SHARES  BY  ACTION  FOR  MONEY  HAD 
AND  RECEIVED. 

9.  OF  MONEY  RECEIVED  UPON  THE  SALE   AND  PURCHASE  OF  LANDS, 

(c)  Cowp.414.  818.  4  Burr.  1984. 1  Campb.  285.    Bac.  Abr.  1  Vol.  260.  Guillim's  Ed. 
•268 


Chap.  4.]  Had  and  Received  to  the  Use  oj  Another.     268 

HOUSES,  FIXTURES,  GOODS,  CATTLE,  &c.  OR  IN  RESPECT  OF  SOME 
ACT  TO  BE  DONE,  OR  BENEFIT  TO  BE  DERIVED ;  OR  UPON  THE  SALE 
OF  ANNUITIES,  WHERE  THE  CONTRACT  HAS  EITHER  BEEN  RE- 
SCINDED, DISAFFIRMED,  OR  NOT  PERFORMED,  AND  THE  CONSIDERA- 
TION HAS  FAILED:  AND  IN  WHAT  CASES  THE  MONEY  SO  RECEIV- 
ED MAY  BE  RECOVERED  BACK. 

10.  OF  FEES  RECEIVED  BY  COUNSEL. 

U.  OF  PREMIUMS  RECEIVED  ON  MARINE  INSURANCES. 

12.  OF  MONEY  PAID  AND  RECEIVED  UNDER  A  MISTAKE  ;  OR  IN  IGNO- 
RANCE BOTH  OF  THE  LAW  AND  OF  THE  FACT  :  AND  OF  VOLUN- 
TARY PAYMENTS  MADE  BY  A  PARTY  EITHER  WITH  FULL  KNOW- 
LEDGE OF  ALL  THE  CIRCUMSTANCES  ;  OR,  HAVING  THE  MEANS  OF 
SUCH  KNOWLEDGE  AT  THE  TIME,  OMITTING  TO  MAKE  DUE  EN- 
QUIRY, &c.  INTO  THE  CIRCUMSTANCES  UNDER  WHICH  THE  CLAIM 
IS  MADE. 

13.  OF  COMPULSORY  PAYMENTS  MADE  EITHER  UPON  A  PLEDGE  OF 
GOODS,  OR  FOR  A  FINE  UPON  ADMITTANCE  ;  OR  UNDER  LEGAL 
PROCESS,  &c.  OR  UPON  A  THREAT  OF  AN  ACTION,  OR  DISTRESS,  Sec. 
OR  UNDER  MERE  COLOR  OF  PROCESS. 

14.  OF  MONEY  RECEIVED  UNDER  A  VOID  AUTHORITY  ;  WHETHER  JU- 
DICIAL OR  OTHERWISE. 

15.  OF  MONEY  RECEIVED  MALA  FIDE,  OR  OBTAINED  BY  DECEIT,  MIS- 
REPRESENTATION, OR  OTHER  FRAUDULENT  MEANS. 

•16.  IN  WHAT  CASES  MONEY  RECEIVED  BV  OR  FROM  [SHERIFFS,  BAI- 
LIFFS, GAOLERS,  OR  THEIR  DEPUTIES,  &c.  MAY  BE  RECOVERED 
BACK. 

17.  OF  MONEY  RECEIVED  BY  THE  RECEIVER  GENERAL  OF  A  COUNTY 
FOR  A  PARTICULAR  PURPOSE  ;  OR  BY  REVENUE  OR  OTHER  PUBLIC 
OFFICERS,  EITHER  BY  MISTAKE  OR  OTHERWISE. 

18.  OF  EXCESS  OF  TOLL  RECEIVED  BY  TOLL-GATE  KEEPERS. 

19.  OF  MONEY  RECEIVED  BY  PARISH  OFFICERS  FOR  THE  MAINTE- 
NANCE OF  BASTARD  CHILDREN. 

80.  OF  MONEY  RECEIVED  UPON  AN  ILLEGAL  CONTRACT  OR  TRANS- 
ACTION WHICH  IS  EITHER  MALUM  IX  SE,  OR  MALUM  PROHIBITUM: 
AND  IN  WHAT  CASES  THE  PARTIES  ARE  DEEMED  W  PARI  DELIC- 
TO  TO  SUCH  AN  EXTENT,  AS  TO  DEPRIVE  THE  PARTY  PAYING 
THE  MONEY  FROM  RECOVERING  IT  BACK  FROM  THE  RECEIVER. 

11.  IN  WHAT  CA3S3  THIS  FORM  OF  ACTION  WILL  LIE  FOR  FEES  OR 
ACCUSTOMED  DUES  RECEIVED,  AND  WHICH  ARE  EITHER  CLAIMED 
BY  ADVERSE  PARTIES,  OR  WHERE  THE  RIGHT  OF  TAKING  THEM 
IS  DISPUTED :  AND  AGAINST  WHOM  THE  ACTION  LIES. 

34  "269 


269  On  Promises  To  Pay  Over  Money     [Part  II. 

22.  OF  PRIZE  MONEY  RECEIVED  j  AND  WHEN  THE  RIGHT  TO  DISTRI- 
BUTIVE SHARES  MAY  BE  TRIED  IN  AN  ACTION  FOR  MONEY  HAD 
AND  RECEIVED. 


I..  OF  MONEY  HAD  AND  RECEIVED  BELONGING  TO  ANOTHER,  AND 
WHICH  EITHER  OUGHT  TO  BE  PAID  TO  HIM,  OR  TO  BE  APPLIED 
TO  A  PARTICULAR  PURPOSE  :  AND  OF  MONEY  DEPOSITED  WITH  A 
STAKE-HOLDER  :  AND  IN  WHAT  CASES  SUCH  MONEY  IS  RECOVERA- 
BLE FROM  THE  RECEIVER  IN  AN  ACTION  OF  INDEBITATUS  AS- 
SUMPSIT. 

As  a  general  rule  it  is  said, (d)  "  that  if  a  man  receive  money  which  ought 
to  be  paid  to  another,  or  be  applied  to  a  particular  purpose,  but  to  which  he 
does  not  pay  or  apply  it,  an  action  of  indebitatus  assumpsit  will  lie  as  for  mo- 
ney had  and  received."  And  therefore  if  A.  delivers  *money  to  B.  to  be  paid 
over  to  C,  the  latter  may  recover  it  of  B.,  by  action  of  indebitatus  assumpsit 
for  money  had  and  received  for  the  use  of  C.(e)  So,  if  money  be  delivered 
by  A.  to  B.  to  buy  a  horse,  or  any  other  thing,  but  which  he  neglects  to  do, 
and  refuses  to  return  the  money,  an  action  of  debt,  or  an  action  on  the  case 
will  lie  for  so  much  money  had  and  received  to  A.'s  use.(  f)  So,  in  the  case 
of  Pouller  v.  Cornwall, (g)  it  was  held,  that  if  a  man  receive  money  for  a 
special  purpose,  and  neglect  or  refuse  to  apply  it  to  the  uses  for  which  he  re- 
ceived it,  an  action  on  the  case  will  lie  as  for  money  had  and  received.  And  it 
was  observed  by  Mr.  Justice  Willes, (h)  "That  though  a  bill  in  equity  may 
be  proper  in  several  of  these  cases,  yet  an  action  at  law  will  lie  likewise  ; 
as,  if  I  pay  money  to  another  to  lay  out  in  the  purchase  of  a  particular  estate 
or  any  other  thing,  I  may  either  bring  a  bill  in  equity  against  him,  considering 
him  as  a  trustee,  and  praying  that  he  may  lay  out  the  money  as  directed  ;  or 
I  may  bring  an  action  against  him  a3  for  so  much  money  had  and  received  for 
my  use." 

So,  where  money  belonging  to  a  benefit  society  was  entrusted  to  the  care  of 
one,  who  had  been  a  member  of  it ;  and  he  afterwards  refused  to  account  to 
the  society,  the  treasurers  of  the  society,  under  the  statute  33  Geo.  3.  c. 
54.  8.  4.,  may  recover  the  money  in  their  joint  names.  Thus,  in  the  case 
of  Sharp  and  another  v.  Warren,{i)  which  was  an  action  of  assumpsit  for  mo- 
ney had  and  received:  and  upon  the  trial  it  appeared,  that  the  parties  had 
been  all  members  of  a  benefit  club  under  articles  which  had  been  duly  en- 
rolled. The  plaintiffs  had  originally  acted  at?  stewards  of  the  club,  and  the 
defendant  as  auditor.  And  the.  action  was  brought  by  the  plaintiffs  to  recover 
a  sum  of  money,  constituting  the  funds  of  the  society,  which  had  been  placed 
in    the    hands  of  the  defendant,  by  them,    for   safe    custody ;    but    the    de- 

(d)  Willes  Rep.  404.  (/)  Owen  Rep.  86. 

(e)  L  Rol.  Abr.  7.  pi.  2.     See  also  1  Rol.  (g)  1  Salk.  9. 

Abr.  27.  pi.  51.  lb.  32.  pL  13.     1  Ventr.  153.         (h)  Willes  Rep.  405. 
1  Bos.  &  Pul.  296.  (i)  6  Price  Rep.  131. 

*270 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.     270 

fendant  had  violated  his  trust  by  applying  the  money  to  his  own  use,  and  re- 
fusing to  pay  it  over.  For  the  purpose  of  the  present  suit,  the  plaintiffs  were, 
previous  to  its  commencement,  appointed  treasurers  to  the  society.  It  was 
objected,  first,  that  the  act  of  parliament  had  not  authorized  the  appointment 
of  two  treasurers  ;  and  therefore  the  plaintiffs  were  not  entitled  to  sue.  Se- 
condly, that  the  defendant,  being  himself  a  member  of  the  society,  was  a  part- 
ner, and  a  tenant  in  common  with  the  other  members  ;  and  therefore  could 
not  be  sued  in  this  form  of  action.  And,  thirdly,  that  the  act.  of  parliament,  hav- 
ing by  the  8th  section,  expressly  provided  a  remedy  in  cases  of  this  sort,  where 
money,  constituting  part  of  the  general  fund,  was  withheld  by  an  officer  of 
the  society,  to  whom  it  had  been  entrusted,  and  who  should  refuse  to  ac- 
count *by  petition  to  the  Court  of  Chancery,  or  the  Court  of  Exchequer,  had  pre- 
cluded the  right  of  suing  by  action  at  law,  whereby  the  money  of  the  club 
would  be  unnecessarily  squandered.  The  Court  of  Exchequer,  however, 
overruled  all  these  objections:  and  Mr.  Baron  Wood  said,  "As  to  the  appoint- 
ment of  the  treasurer,  the  act  empowers  the  members  to  appoint  two  persons  to 
the  office  if  they  think  fit: — the  4th  section  expressly  enacts,  that  such  socie- 
ties shall  and  may  elect  and  appoint  such  persons  (in  the  plural)  into  the  cffi.ce 
of  treasurer,  &c.  and  to  elect  and  appoint  others  in  the  room  of  those  who 
should  die ;  and  that  is  made  still  more  clear  by  the  subsequent  language  of 
the  section,  which  speaks  of  the  treasurers  in  the  plural,  which  would  other- 
wise be  nonsense.  The  question  then  is,  whether  the  rule  of  the  society 
abridged  the  power  given  to  them  by  the  act.  The  object  of  the  rule  was 
merely  to  enable  the  members,  for  the  sake  of  convenience,  to  appoint  a  treas- 
urer at  a  monthlv,  instead  of  a  yearly  meeting.  They  use  the  word  '  treasur- 
ers' as  meaning  the  office  of  treasurer,  and  in  that  sense  it  would  be  absurd  to 
suppose  that  they  meant  to  abridge,  by  the  rule,  their  own  power  as  given  by 
the  statute.  There  is  therefore  no  pretence  for  the  objection.  Both  by  the 
statute,  and  by  their  rule,  they  had  a  power  to  appoint  two  or  more  persons  to 
the  office,  and  that  is  what  they  have  in  fact  done.  The  next  objection  is,  the 
defendant  being  a  partner.  Now,  without  reverting  to  the  terms  of  the  act  of 
parliament,  I  think  that  enough  appears  from  the  facts  of  this  case  to  enable  the 
plaintiffs  to  maintain  the  present  action  ;  for  the  promise  laid  in  the  declaration 
must  be  implied  from  the  circumstance  of  the  defendant's  having  the  money  of 
the  society  in  his  hands  after  he  had  left  the  club,  and  when  he  had  consequent- 
ly ceased  to  be  a  partner.  I  may,  however,  ground  myself  on  the  words  of 
the  act;  for  the  11th  section  enacts,  "that  the  monies,  &c.  of  the  society  shall 
be  vested  in  the  treasurer  or  treasurers  (or  other  officers)  for  the  use  and  ben- 
efit of  the  society,  and  in  the  succeeding  officers,  for  all  purposes  of  action  and. 
suit,  and  that  it  shall  for  those  purposes  be  taken  to  be  the  property  of  such  offi- 
cers, who  are  authorized  to  bring  actions  in  their  own  name."  As  to  the  spe- 
cific remedy  given  by  the  statute,  it  is  clear,  that  that  docs  not  preclude  the 
plaintiffs  from  suing  the  defendant  in  a  court  of  law.  That  does  not  deprive 
the  plaintiffs  of  any  pre-existing  right ;  it  gives  merely  an  additional  remedy, 
and  all  the  remedies  are  concurrent,  and  the  plaintiffs  may  choose  which  ever  is 

•271 


271  On  Promises  to  Pay  Over  Money         [Part  II. 

most  suitable  to  their  case.  I  am  of  opinion,  therefore,  that  these  persons  were 
properly  appointed  treasurers,  and  that  they  may  maintain  the  present  action  in 
their  own  names  ;  and  that  notwithstanding  they  have  a  more  summary  remedy 
given  to  them  by  the  act  of  parliament." 

Of  Money  deposited  with  a  Stakeholder.] — Where  money  in  litiga- 
tion between  two  parties  has,  by  mutual  consent,  been  paid  over  *to  a  stake- 
holder in  trust  for  the  paity  entitled,  it  can  only  be  sued  for  and  recovered  from 
the  stakeholder  by  the  party  entitled  to  it,  and  not  from  the  original  party  who 
was  indebted,  though  he  agree  to  waive  all  objections  to  form  (k)  But  where 
one,  who  had  voluntarily  offered  to  pay  a  sum  of  money  for  the  use  of  the  poor 
of  the  parish,  in  order  to  avoid  a  prosecution  by  a  magistrate,  upon  a  charge 
of  having  instigated  the  escape  of  a  prisoner  in  custody  for  a  misdemeanour; 
which  offer  was  consented  to  by  the  magistrate,  and  the  money  accordingly 
paid  by  the  party  to  the  master  of  the  workhouse  for  the  use  of  the  poor ;  he 
may,  at  any  time  before  the  money  is  so  applied,  countermand  the  application 
of  it,  and  may  recover  the  same  back  in  an  action  for  money  had  and 
received. (I) 

An  auctioneer  who  receives  money  by  way  of  deposit  upon  a  contract  for 
sale  of  lands,  &c.  is  considered  as  a  mere  stakeholder  for  the  vendor  and  ven- 
dee ;  and  he  cannot  legally  part  with  the  deposit  till  such  time  as  it  shall  appear, 
in  the  event,  to  whom  the  money  properly  belongs,  (m) 

Where  money  is  deposited  by  A.  with  B.  to  distribute  amongst  A.'s  creditors 
in  proportion  to  their  respective  claims,  no  one  of  these  can  maintain  an  action 
against  B.  before  the  proportions  of  all  the  claimants  have  been  ascertained,  (n) 

If  money  be  deposited  in  the  hands  of  a  stakeholder,  for  the  purpose  of  be- 
ing paid  over  to  the  winner  on  the  event  of  a  legal  wager,  an  action  of  indebi- 
tatus assumpsit  will  lie  by  the  winner  against  the  stake-holder.  Thus,  in  the 
case  of  Temple  v.  Welds,(o)  which  was  an  action  of  indebitatus  assumpsit  for 
money  had  and  received :  and  it  appeared  that  the  plaintiff  and  another  had 
laid  a  wager,  and  had  deposited  the  money  betted  with  the  defendant;  the 
plaintiff  proved  that  he  had  won  the  wager,  and  the  Court  determined  that  the 
action  was  well  brought ;  for  upon  the  wager  being  won,  the  money  was  actu- 
ally the  plaintiff's.  It  has  also  been  determined  that  if  money  be  deposited 
with  a  stakeholder  on  the  event  of  a  battle  to  be  fought  by  the  parties  laying  the 
wager ;  and  after  the  battle,  a  dispute  arises  as  to  which  of  them  was  the  win- 
ner, and  the  money  has  not  been  paid  over,  each  party  may  recover  from  the 
stakeholder  the  sum  deposited  by  him.  Thus,  in  the  case  of  Cotton  v.  Thur- 
landt(p)  which  was  an  action  for  money  had  and  received,  to  recover  back  fif- 
teen guineas,  which  had  been  deposited  by  the  plaintiff,  as  his  share  of  a  stake, 

(A)  Ker  v.  Osborne,  9  East  Rep.  379.  Datcson  v.  Scriven,  1  H.  Bl.  218.,  which  waa 

(I)  Taplor  v.  Lendey,  ibid.  49.  an  action  against  the  clerk  of  a  course  for  a 

(m)  Burrough.  v.  Skinner,  5  Burr.  2639.  Et  subscription-purse,  at  the  suit  of  the  winner- 
rid*  post  sec.  9.  of  the  present  chapter.  (p)  5  Term  Rep.  405.  And  6e«  Disnoy  on 

(n)  Robson  v.  Jindrade,  1  Stark.  372.  Gaming  and  Wagejrs,  cap.  3. 
(o)  10  Mod.   315.  Vid*    Holt's  R«p.  37. 

•272 


Chap.  4.]  Had  and  Received  to  the   Use  of  Another.     272 

in  the  defendant's  hands,  upon  the  event  of  a  boxing  match  between  the  plain- 
tiff and  another  person.  There  was  some  dispute  *as  to  the  event  of  the 
battle  which  was  fought,  the  plaintiff  being  supposed  to  have  lost  it  by  striking 
a  foul  blow ;  but  the  defendant  having  been  warned  by  a  friend  of  the  plaintiff 
not  to  pay  the  money  over  till  the  parties  met,  and  the  matter  was  decided,  the 
defendant  promised  that  he  would  not.  Mr.  Justice  Grose,  before  whom  the 
cause  was  tried,  was  of  opinion  that  the  money  having  been  deposited  with  the 
defendant  for  an  illegal  purpose,  could  not  be  recovered  back  by  the  plaintiff; 
and  therefore  directed  a  nonsuit.  But  a  rule  was  afterwards  obtained  to  show 
cause  why  the  nonsuit  should  not  be  set  aside,  and  a  new  trial  granted.  The 
case  which  governed  the  opinion  of  the  learned  judge  at  the  trial,  was  a  case 
of  Camm  v.  Alder,  before  Wilson  J.  at  the  Worcester  spring  assizes,  1790. 
It  was  an  action  for  money  had  and  received,  in  which  it  appeared  that  the 
plaintiff  and  another  person  deposited  in  the  defendant's  hands  five  guineas 
each,  as  a  wager  upon  the  event  of  a  boxing  match  between  the  plaintiff  and 
another  man.  The  battle  was  fought,  and  the  action  was  brought  only  to 
recover  the  five  guineas  deposited  by  the  plaintiff:  but  Wilson  J.  upon  the 
opening  of  the  case,  was  of  opinion,  that  the  transaction  was  illegal,  and  non- 
suited the  plaintiff.  And  he  cited  a  case  determined  by  Lord  Mansfield,  at 
Guildhall,  where  a  person  lent  501.  to  another,  who  was  to  fight  for  that  sum, 
upon  condition  that  if  he  won,  he  was  to  have  the  50/.  again.  The  borrower 
won  the  battle,  and  the  action  was  brought  against  him  by  the  lender  to  recov- 
er the  501.  so  lent ;  but  Lord  Mansfield  thought  the  transaction  illegal,  and 
nonsuited  the  plaintiff.  The  Court,  however,  overruled  the  case  of  Camm  v. 
Alder,  and  determined,  that  the  plaintiff  was  entitled  to  recover  the  money. 
And  Ashhurst  Just,  said,  "  There  is  neither  equity  or  conscience  on  the  part 
of  the  defendant ;  for  if  the  contract  were  illegal  between  the  parties  to  the 
wager,  yet  as  long  as  the  money  remains  in  his  hands  he  is  answerable  to  some 
one  for  it ;  and  if  the  event  on  which  the  wager  was  laid  be  not  decided,  he 
ought  to  restore  one  half  of  the  money  to  each  party."  (126) 

So,  money  deposited  with  a  stakeholder  as  a  bet,  on  the  event  of  a  foot-race, 
may  be  recovered  from  him  by  either  party,  in  an  action  for  money  had  and  re- 
ceived, after  the  race  has  been  run,  and  the  parties  differ  as  to  the  winner.  And 
a  nonsuit  on  the  ground  that  such  actions  are  an  idle  waste  of  the  time  and  hin- 


(126)  A  wager  contrary  to  the  principles  of  public  policy,  is  void  :  Therefore,  where  A. 
and  B.  laid  a  wager  on  the  event  of  an  election  of  governor  of  a  state,  both  being  electors, 
and  one  of  them  having  voted  at  the  election  ;  the  patties,  respectively,  having  deposited 
a  sum  ot  money  in  the  hands  of  C,  as  stakeholder;  the  winning  party  cannot  maintain 
an  action  against  C.  for  the  whole  sum  deposited.  Bunn  v.  Riker,  4  J.  R.  426.  So, 
where  the  event  of  an  election  for  governor,  has  happened,  no  action  can  be  maintained 
by  the  loser  against  the  stakeholder,  to  recover  back  the  money  deposited  by  him  upon  a 
wager  on  the  event  of  the  election  ;  which  still  remains  in  the  hands  of  the  stakeholder,  and 
which,  ho  has  been  notified  not  to  pay  over  to  the  winner.  Yeatn  v.  Foot,  in  Error.  12  J 
R.  !.     See  VUchcr  v.  Ytates,  11  J.  R.  23. 

*2?3 


273         On  Promises  To  Pay  Over  Money  [Part  II. 

drance  of  the  business  of  courts  of  law,  was  set  aside.  These  points  were 
settled  in  the  case  of  Bale  v.  Cartwright,(q)  which  was  an  action  for  money- 
had  and  received,  brought  to  recover  a  sum  of  10/.  deposited  in  the  hands  of 
the  defendant,  as  stakeholder  of  the  sums  betted,  to  abide  the  event  of  a  wa- 
ger of  51.  on  a  foot-race.  Mr.  Baron  Garrow,  before  whom  the  cause  came 
on  to  be  tried,  nonsuited  the  plaintiff  ;  holding  that  the  wager  Avas  in  itself  of 
that  *nature  which  the  courts  had,  according  to  the  current  of  authorities,  en- 
deavoured to  discourage,  by  refusing  to  try  such  frivolous  questions,  arising  out 
of  the  idle  folly  of  parties,  to  the  hindrance  of  the  sober  and  necessary  business 
of  the  other  suitors.  But  the  Court  of  Exchequer  afterwards  granted  a  rule  to 
shew  cause  why  that  nonsuit  should  not  be  set  aside  on  the  authority  of  the  case 
of  Cottony.  Thurland.(r)  The  substance  of  the  evidence  at  the  trial  was,  that 
the  plaintiff  and  another  person  had  betted  5/.  on  the  race,  and  had  deposited  the 
money  in  the  hands  of  the  defendant ;  and  the  race  having  been  run,  and  the 
plaintiff  having,  as  he  stated,  won  the  wager,  sought  by  this  action  to  recover 
the  101.  ;  but  there  being  some  doubts  suggested  to  him  as  to  his  light  to  recov- 
er the  whole,  he  afterwards  insisted  only  on  the  sum  of  51.  originally  deposited 
by  him.  And,  after  argument,  in  which  all  the  authorities  on  the  subject  were 
cited,  the  Court  determined,  that  the  wager  was  not  illegal ;  and  that  ihe  plain- 
tiff was  entitled  to  recover  the  amount  deposited  with  the  defendant.  And  Mr. 
Baron  Woo d  observed,  "  that  where  a  plaintiff 's  right  to  bring  an  action  was 
doubtful  in  law,  he  should  consider  that  a  judge  could  not  refuse  to  try  it." 
And  the  Lord  Chief  Baron  in  delivering  the  opinion  of  the  Court  said,  "The 
question  is,  whether  the  action  lies?  The  last,  and  indeed  the  only  decision 
that  can  be  said  to  be  in  point,  is  that  of  Cotton  v.  Thurland ;  and  that,  we 
think,  determines  this  point.  Lord  Kenyon,  in  delivering  his  judgment  on  that 
occasion,  distinguishes  the  case  of  an  action  brought  against  a  stakeholder,  from 
that  of  a  policy  of  insurance,  where  the  risk  has  been  run,  and  the  party  attempts 
to  regain  his  money  :  and  he  put  entirely  out  of  the  question  the  illegality  of  the 
subject  matter  of  the  wager.  The  principal  ground  on  which  that  case  appears 
to  have  been  determined  was  the  fact  of  the  money  being  still  in  the  hands  of 
the  stakeholder ;  and  the  other  judges  concur  with  him,  Mr.  Justice  Grose 
changing  his  former  opinion,  and  the  Court  overruling  the  decision  of  Mr.  Jus- 
tice Wilson.  We  are  therefore  bound  by  a  case  determined  so  solemnly ;  and 
although  many  cases  have  been  cited  in  support  of  the  nonsuit,  all  of  which 
we  have  looked  into,  we  think  that  there  are  none  that  can  sustain  it  against 
the  authority  of  that  which  I  have  particularly  mentioned." 

(q)  7  Price's  Rep.  510.     But  see  Brandon  v.  Hibbert,  4  Campb.  37.         (r)  Ante  272. 
*274 


Chap.  4.]  Had  and  Received  to  the  Use  of  Aiiother.   275 


*2.  THIS  FORM  OF  ACTION  LIES  ONLY  WHERE  MONEY  HAS  BEEN  RECEIV- 
ED IN  HIE  FIRST  INSTANCE;  OR  WHERE  GOODS,  &c.  THE  PROPERTY  OF 
ANOTHER,  HAVE  BEEN  EITHER  ACTUALLY  SOLD  OR  DISPOSED  OF;  OR 
WHERE,  UNDER  PARTICULAR  CIRCUMSTANCES,  ir  MAY  BE  REASON- 
ABLY PRESUMED    THAT    THEY    HAVE    BEEN  CONVERTED  INTO  MONEY. 

The  subject  matter  of  the  action  for  money  had  and  received  must,  in  gen- 
eral, be  for  money  only,  and  not  for  any  specific  thing  :  and,  therefore,  in  the 
case  of  Nightingal  v.  Devisme,(s)  it  was  determined,  that  an  action  of  indebita- 
tus asssu/npsit  for  money  had  and  received  will  not  lie  for  the  transfer  and 
receipt  of  stock  in  the  public  funds,  unless  it  be  actually  converted  into  money. 
So,  where  goods  are  distrained  for  rent  in  ariear,  but  the  landlord  afterwards 
delivers  them  up  to  the  tenant  upon  his  promising  to  pay  the  rent ;  an  action 
for  money  had  and  received  will  not  lie  for  the  value  of  the  goods,  though  the 
tenant  neglects  to  pay  the  arrears  of  rent,  (t)  But  where  upon  a  wager  of  ten 
guineas  to  one,  the  stakeholder  received  country  bank-notes,  and  paid  them 
over  wrongfully  to  the  party  who  had  lost  the  wager  ;  it  was  holden  that  an 
action  for  money  had  and  received  would  lie  at  the  suit  of  the  winner:  Lord 
Ellcnborough  Ch.  J.  observing,  "  that  provincial  notes  were  certainly  not 
money  ;  yet,  if  the  defendant  received  them  as  money,  and  all  parties  agreed 
to  treat  them  as  such  at  the  time,  he  should  not  be  permitted  to  say  they  were 
only  paper  and  not  money.  As  against  him  it  was  so  much  money  received  by 
him."(w) 

So,  where  an  insurance  broker  having  received  credit  in  an  account  with  an 
underwriter  for  a  loss  upon  a  policy,  whereupon  the  name  of  the  underwriter  was 
erased  from  the  policy  ;  it  was  holden  that  the  principal  might  maintan  an  ac- 
tion for  money  had  and  received  against  the  broker,  although  he  had  not  actually 
received  any  money  from  the  underwriter  :  for  the  broker  having  deprived  the 
plaintiff  of  his  remedy  against  the  underwriter,  and  having  received  credit  in  ac- 
count for  the  money,  he  was  estopped  from  saying  that  he  had  not  the  sum  in 
his  hands  for  the  plaintiff's  use.(u) 

So,  where  property  was  assigned  as  a  security  upon  a  loan  of  money,  and 
afterwards  sold  by  the  lender,  upon  default  of  payment;  he  was  held  liable  to 
be  sued  for  the  surplus,  after  satisfying  his  debt.  Thus,  in  the  case  of  Pr  outing 
v.  Hammond,(v>)  which  was  an  action  of  indebitatus  assumpsit  for  money  had 
and  received.  It  appeared,  the  plaintiff  had  assigned  his  ship  to  the  defendant  as 
a  security  for  the  repayment  of  *money ;  but  on  the  register  it  appeared  to 
be  an  absolute  assignment :  And  the  defendant  afterwards  sold  the  ship,  and 
told  the  plaintiff  that  he  had  received  the  purchase-money,  and  would  account 
to  him  for  the  balance  of  the   proceeds  of  the  sale :  the   Court  held,   that  the 


(s)  5  Bur.  2599.  Et  vide  1  East  Rep.  1.  (r)  Andrew  v.  Robinson,  3  Campb.  199. 

(I)  Leery  v.  Goodson,  4  Term  Rep.  687.  (to)  8  Taunt.  688. 

(u)  Pickard  v.  Bankes,  13  East  Rep.  20. 

*275  *276 


276  On  Premises  To  Pay  Over  Money     [Part  II. 

plaintiff  was  entitled  to  recover  such  balance  in  this  form  of  action,  and  that 
the  acknowledgment  was  sufficient  to  support  the  action. 

So,  where  a  person  receives  goods,  &c.  the  property  of  another,   and  con- 
verts them  into  money,  an  action  of  indebitatus  assumpsit  (in  some  cases)  will 
lie,  to  recover  the  money  so  raised,   &c.     Thus,  in  the  case   of  Longchamp  v. 
Kenny, {x)  which  was  an  action  of  indebitatus  assumpsit   for  money  had  and 
received,  &c.     The  facts  were  as  follow  :  The  plaintiff  was  a  waiter  at  one  of 
the  great  subscription  houses,  or  clubs,  in  St.  James's  Street,  of  which  the  de- 
fendant was  master.     Each  of  them  had  received  from  Mrs.    Cornells  a  num- 
ber of  masquerade  tickets  to  dispose  of,  for  which  they   were  to  account  after 
the  masquerade,  by  paying  the  value,  or  returning  the  tickets.     Kenny  had  got 
possession  of  one  of  the  tickets  which  had  been  delivered  to  Longchamp,  and 
when  Mrs.   Cornells  agent  came  to  demand  an  account  of  Longchamp's  tick- 
ets, he  was  told  by  Longchamp,  that  Kenny  had  had  one  of  them,  and  he  must 
pay  for  it.     Upon  this  the  agent  went  and  made  a  demand  on  Kenny,  who  said, 
"  well,  if  I  had  it,  what  then  ?  Go  to  the  person  who  received  it  of  you,  and 
let  him  pay  you."     Longchamp  was  then  threatened  with  an  arrest,  on  which 
he  paid  five  guineas  (the  value  of  the  ticket)  to  Mrs.  Cornells  agent,  and  then 
brought  this  action   against  Kenny.      At  the  trial,  the   plaintiff  obtained  a  ver- 
dict of  five  guineas  ;  but  a  question  was  reserved  for  the  opinion  of  the  Court 
of  King's  Bench,  whether  the  action  should  have  been  trover  or  assumpsit  ? 
The  court  determined  that  assumpsit  was   the  proper  form   of  action.     And 
Lord  Mansfield  Ch.  J.  said:  "It  is  certain  that  where  the  demand  is  for  a 
specific  thing,  an  action  cannot  be  maintained   in  this  form.     Great  benefit 
arises  from  a  liberal  extension  of  the  action  for  money  had  and  received  ;  because 
the  charge    and  defence   in  this  kind  of  action,  are  both  governed  by  the  true 
equity  and  conscience  of  the  case.     But  it  must  not  be  carried  beyond  its  proper 
limits.     The  plaintiff  must  never  be  permitted  to  turn  the  generality  of  the 
count  into  a  surprise  upon  the  defendant,  by  deserting   the  ground  which  the 
defendant  was  led  to  judge  the  only  matter  to  be  tried,  and  resorting  to  another 
of  which  he  could  not  have  the  least  suspicion.     If  the  present  action  had  been 
brought  without  notice  of  the  nature  of  the  demand,    I  should  have    thought  it 
could  not  have  been  supported.     But  here   the  defendant  came  prepared.     If 
he  sold  the  ticket,   and  received  the  value  of  it,  it  was  for  the  plaintiff's   use, 
because  the  ticket  was  his.    Now,  as  the  defendant  has  not  produced  the  ticket, 
it  is  a  fair  presumption  that  he  has  sold  it." 

*So,  in  the  case  of  Norris  v.  Napper,{y)  which  was  also  an  action  of  indebitatus 
assumpsit,  for  money  had  and  received.  The  facts  proved  at  the  trial  were, 
that  the  plaintiff  was  a  soldier  in  Lord  Arrays  regiment  of  horse,  in  the  defen- 
dant's troop  ;  the  regiment  being  commanded  for  Holland,  the  plaintiff  and  hi* 
horse  were  shipped  on  board  a  transport,  and  in  their  passage  met  with  such  a 
storm,  that  by  the  working  of  the  ship  the  plaintiff's  horse  was  killed  ;  that  sever- 

(i)  Doug.  137.  (j/)  Ld.  Raym.  1007. 

•277  " 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.      27? 

al  other  horses  were  lost  in  the  same  storm  ;  and  the  queen  made  an  allowance 
of  15/.  per  horse,  for  every  horse  that  was  lost,  to  remount  the  troopers,  which 
was  paid  by  the  queen  to  Lord  Arran,  for  all  the  horses  that  were  lost,  and  by 
him  laid  out  in  buying  horses  ;  fifteen  of  which  horses  were  sent  to  the  defen- 
dant to  supply  the  loss  in  his  troop,  but  before  these  horses  came  over  the  plain* 
tiff  was  broke,  and  so  was  never  remounted  ;  that  when  the  plaintiff  came  into 
the  troop  he  brought  in  his  own  horse.  Holt  Ch.  J.  held,  that  this  evidence  main- 
tained the  action  ;  for  though  the  captain,  the  defendant,  did  not  actually  receive 
the  15/.  in  money,  yet  he  received  a  satisfaction  which  was  money's  worth,  and 
the  plaintiff  cannot  bring  trover  for  the  horse  because  he  cannot  claim  any  one 
of  the  fifteen  horses  in  particular,  none  having  been  ever  delivered  to  him.  But 
the  reporter  adds,  that  at  the  counsel's  request  it  was  made  a  case  for  his  fur- 
ther consideration  ;  and  it  does  not  appear  whether  it  was  ever  finally  deter- 
mined. 

So,  in  Abbotts  v.  Barry, (z)  where  the  defendant  having  fraudulently  induc- 
ed the  plaintiff  to  sell  goods  to  A.  who  could  not  pay  for  them ;  and,  on  the 
nominal  re-sale  of  these  goods  by  A.  in  which  the  defendant  was  really  con- 
cerned, having  himself  obtained  the  money  paid  on  such  re-sale  :  it  was  held 
that  the  plaintiff  might,  in  an  action  for  money  had  and  received,  recover  from 
the  defendant  the  value  of  the  goods  unpaid  for  by  A.  So,  in  the  case  of 
6?/y«bart.  v.  Baker, (a)  where  it  appeared,  that  the  plaintiff  and  the  defendant 
having  each  lodged  their  respective  India  bonds  with  the  same  bankers,  who 
afterwards  privily,  and  without  the  defendant's  authority,  sold  his  bonds ;  and 
upon  his  demand  of  them,  delivered  up  to  him  the  India  bonds  of  the  plaintiff  to 
the  same  total  amount,  and  payable  to  the  same  obligee  (he*  being  always  the 
treasurer  of  the  company,  who  indorses  such  bonds  in  blank  before  they  are  cir- 
culated), but  having  different  numbers,  and  for  different  separate  sums,  and 
therefore  manifestly  distinguishable  from  his  own  bonds  ;  though  the  defendant 
did  not  know  that  they  were  the  property  of  another,  but  was  told  by  the  bankers 
that  they  had  exchanged  his  original  bonds  for  these  :  the  Court  determined, 
that  the  defendant  having  sold  the  plaintiff's  bonds,  so  received  from  his  own 
agents,  who  had  acted  mala  fide  in  passing  them  to  him,  was  liable  to  answer 
over  *to  the  plaintiffs  for  the  amount,  in  an  action  of  assumpsit  for  money  had 
and  received  to  their  use. 

3.  OF  MONEY  OR  A  DEBT  DUE  FROM  ONE  PERSON  TO  ANOTHER,  WHICH, 
BY  AGREEMENT,  IS  EITHER  DIRECTED  OR  APPROPRIATED  TO  BE  PAID 
OVER  TO  A  THIRD  PERSON  :  IN  WHAT  CASES  IT  SHALL  BE  DEEMED 
AS  SO  MUCH  MONEV  HAD  AND  RECEIVED  TO  THE  USE  OF  THAT 
PERSON. 

It  is  a  general  ruleof  law,  that  choses  in  action   are  not  assignable  :  and  there- 
fore where  a  person,  entitled  to  money  due  from  another,  assigns  over  his  interest 


(z)  2  Brod.  &  Bing.  369.  (a)  13  EaBt  Rep.   609. 

35  *273 


278  On  Promise  to  Pmj  Over  Money       [Part  11. 

in  it  to  a  third  person,  or  orders  it  to  be  paid  to  him,  the  mere  act  of  assingment 
or  order  does  not  entitle  the  assignee  to  maintain  an  action  for  it:  for  the  debt, 
or  may  refuse  his  assent ;  he  may  have  an  account  against  the  assignor,  and  wish 
to  have  his  set-off.  And  accordingly  in  the  case  of  Criffordv.  Berry, (b) 
where  A.,  to  whom  wages  were  due  from  the  East  India  Company,  authorised 
the  defendant  to  receive  the  same,  and  pay  them  over  to  the  plaintiff,  to  whom 
he  was  indebted  :  and  the  plaintiff  brought  an  action  of  indebitatus  assumpsit 
against  B.,  the  defendant,  for  the  amount.  But  Holt  Ch.  J.  said,  "  that  the 
action  could  not  be  maintained  by  the  plaintiff;"  and  directed  him  to  be  non- 
suited. 

But  if  there  be  an  assent  or  promise  on  the  part  of  the  debtor  or  holder  of 
the  money,  in  that  case  it  has  been  holden,(c')  that  the  action  of  indebitatus 
assumpsit  for  money*  had  and  received  is  maintainable.  So,  in  the  case  of 
Ward  v.  Evans,{d)  which  was  an  action  of  indebitatus  assumpsit  for  60/. 
received  by  the  defendant  to  the  use  of  the  plaintiff.  The  facts  were  as  follow: 
one  Fellows,  a  merchant,  who  kept  his  cash  with  the  defendant  Sir  Stephen 
Evans,  a  goldsmith,  in  Lojnbard  Street,  was  indebted  to  the  plaintiff  in  60/.  10.?. 
the  plaintiff  sent  his  servant  to  receive  the  money  of  Fellows,  who  ordered  his 
servant  to  pay  Ward's  man  the  money  at  Sir  Stephen  Evans's.  Accordingly 
both  the  servants  went  to  Sir  Stephen  Evans's  shop,  and  there  Fellows's  servant 
directed  the  defendant's  servant,  to  pay  Ward's  servant  the  60/.  10s.  and  to  in- 
dorse it  on  a  note  of  100/.  from  the  defendant  to  Fellows,  in  part  of  payment  of  the 
100/.  The  defendant's  servant  accordingly  indorses  60/.  10s.  as  paid  on  the 
said  note  of  100/.  and  then  paid  10s.  to  Ward's  servant,  and  gave  him  a  note 
subscribed  by  one  Wallis  a  goldsmith,  for  60/.  payable  to  one  Freeman  or 
bearer,  which  the  plaintiff's  servant  accepted.  This  transaction  was  about 
noon,  and  at  that  time  Wallis  was  a  solvent  person,  and  continued  paying  his 
bills  till  night.  Next  morning  *the  plaintiff's  servant  coming  with  the  note  to 
receve  the  60/.  of  Wallis,  found  that  Wallis  had  stopped  payment,  and  was 
become  insolvent.  Whereupon  the  plaintiff  brought  this  action  against  the 
defendant  for  the  60/.  note  :  it  did  not  appear  upon  the  evidence  that  the  plain- 
tiff was  conusant  of,  or  privy  to  this  transaction  of  his  servant,  or  had  given 
him  any  authority  to  receive  a  note  instead  of  money,  or  approved  of  it  after- 
wards. And  Holt  Ch.  J.  said  :  "  I  am  of  opinion  that  an  indebitatus  assumpsit 
for  monies  received  to  the  plaintiff's  use  lies  properly  in  this  case,  and  that 
this  evidence  is  sufficient  to  maintain  the  plaintiff's  declaration.  For  when  the 
60/.  was  indorsed  on  Fellows's  bill,  as  so  much  actually  paid  by  Sir  Stephen 
Evans  to  Fellows,  Fellows  directing  that  sum  to  be  paid  to  the  plaintiff,  and  the 
defendant  having  the  money  in  his  hands,  it  amounts  to  a  receipt  of  so  much  by 
the  defendant  to  the  plaintiff's  use.     No  doubt  the  action  were   maintainable  if 


(fc)  241.     But    see     Fenner    v.        (c)  Per  Lord  Ellmberai°:h.4  Esp.  Rep.  204. 

M-  ■'.    Bl.    1269.    centra.    This  case,         (d)  2  Ld.  Ravin.  U2S.  6  Mod.  36.   1  Salk. 

however,  is  doubted  in  1  East  Rep.  104.  Per     442.  &  Holt,  120.  S.  C. 
Lord  Keiiyen. 
•279 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.     27$ 

the  plaintiff*  had  brought  the  note  back  again  to  the  defendant,  and  though  he 
did  not,  since  it  does  not  amount  to  actual  payment,  the  plaintiff  must  recover." 
And  Powel  Just,  said,  "  The  delivery  and  acceptance  of  Wallis's  note  is  no 
payment,  for  when  a  master  sends  his  servant  to  receive  money,  he  cannot  ac- 
cept a  note  in  lieu  of  it.  Perhaps,  if  the  master  had  been  there  himself,  he 
would  have  refused  the  note,  as  knowing  the  insufficiency  of  Wallis ;  and  shall 
the  servant  oblige  him  to  take  such  a  note  by  his  acceptance  without  his  mas- 
ter's directions  ?  Indeed  if  the  master  consents  to  it  afterwards,  that  amounts 
to  a  previous  command."     Judgment  for  the  plaintiff,  per  totam  curiam. 

So,  in  the  case  of  Israel  v.  Douglas  and  another,  (e)  which  was  also  an  action 
of  indebitatus  assumpsit  for  money  had  and  received.  The  material  facts  of  this 
case  were  as  follow  :  the  defendants  who  were  partners,  were  indebted  to  one 
Delvalle,  a  broker,  in  64/.  9s.  for  brokerage,  and  Delcalle  was  indebted  to  the 
plaintiff  in  40/.  on  a  promissory  note.  Delvalle  afterwards  applied  to  the  plain- 
tiff, to  lend  him  a  further  sum,  which  the  plaintiff  refused  to  advance  without 
security  ;  whereupon  Delvalle  gave  him  an  order  on  the  defendants  for  the  sum 
in  which  they  were  indebted  to  him  (Delvalle)  for  brokerage.  This  order  was 
sent  by  the  plaintiff  to  the  defendants  in  November  1787,  with  a  request  that 
they  would  acknowledge  their  having  given  him  credit  for  it.  The  defendant 
Douglas  answered,  that  they  would  pay  the  money  which  they  owed  to  Delvalle, 
to  no  other  person  but  the  plaintiff,  but  objected  to  the  amount  of  the  sum 
contained  in  the  order,  which  they  desired  to  have  rectified.  Another  order 
was  then  sent  to  them,  which  Douglas  again  objected  to,  promising  at  the 
same  time  to  pay  the  plaintiff,  what  they  really  owed  to  *Delvalle,  and  requesting 
an  order  to  pay  or  give  credit  to  the  plaintiff,  for  so  much  in  their  hands,  as 
was  in  fact  due  to  Delvalle.  An  order  in  this  form  was  accordingly  sent  them, 
which  they  accepted  ;  in  consequence  of  which,  the  plaintiff  advanced  70/.  to 
Delvalle,  who  afterwards  becoming  a  bankrupt,  the  defendant  refused  to  pay  the 
m  oney  to  the  plaintiff  according  to  the  order.  On  which  refusal  this  action 
was  brought ;  and  at  the  trial,  the  plaintiff  obtained  a  verdict ;  against  which 
a  rule  was  obtained  to  show  cause,  why  it  should  not  be  set  aside,  and  a  new 
trial  granted.  But,  after  argument,  all  the  judges  of  the  court  of  Common  Pleas 
(except  Mr.  Justice  Wilson)  were  of  opinion,  that  the  evidence  supported 
the  count  for  money  had  and  received.  And  Lord  Loughborough  Ch.  J.  said, 
"  It  has  been  contended,  that  the  money  was  in  point  of  fact  owing  by 
the  defendants  to  Delvalle,  that  their  undertaking  was  to  him,  that  in  re- 
ality no  money  was  had  and  received  by  (hem  to  the  use  of  the  plaintiff". 
But  Delvalle  had  paid  for  premiums  on  account  of  the  defendants,  which 
created  a  debt  from  them,  and  which  he  might  have  set  off"  against  any 
similar  demand  of  theirs  against  him.  This  debt  is,  with  the  consent  of  the 
parlies,  assigned  to  the  plaintiff.  Douglas  has  due  notice  of  it,  and  assents ; 
by  which  assent  he  becomes,    with    his    partner,    liable    to  the   plaintiff*.     He 


(e)  1H.B1.  239.2  Sir  W.  Bl.   Rep.  1269.     case  is    questioned.     See  also   1  East  Rep. 
But    see  the  case  of   Taylor  v.  Higgins,  3     104. 
East  Rep.  171.  where  the  authority  of  this 


* 


280 


280  On  Promises    To  Pay  Over  Money       [Part  II. 

makes  no  objection  to  an  order  from  Delvalle  to  pay  his  money  to  the   plaintiff, 
but  only  to  the    amount    of  the    sum    paid.     He    insists    that    the    -whole    de- 
manded by  Delvalle    was  not  due,  and  therefore  requires  a  looser  order,  on    the 
faith  that  he  would  pay  the  balance :  on  his   failure   to  pay,  his  promise  attach- 
ed, so  as  to  make  the  defendants  liable   to  an    action.     Then  the  question    is, 
whether  when  Israel  brings  an  action  in  his  own  name  against   the  defendants, 
this  shall  not  be  considered  as  money  had   and    received   by  them    to    his  own 
use  1     Now  when  Douglas  had  admitted  the  money  to  be  due,  he  was  that  mo- 
ment estopped,  as  it  were,  from  saying  that  it  was  not  due.     I  also  think  the  ac- 
tion might  be  maintained  on  the  account  stated  :  Delvalle  gives  an  order   to  pay 
to  the  plaintiff  a  liquidated  balance  ;  the  only  dispute  is  concerning  the  amount 
of    that   balance.      Douglas    says,  "  I   will   pay    you  according    to    the    sum 
which    shall   appear  to   be  due."     He   is  here  again  estopped    from    denying 
the  effect  of  his  promise.     lam  therefore  of  opinion  that    the    verdict   is  right, 
and  ought  not  to  be  set  aside."     And  Gould  Just,  said  "  This  case  is  like  that 
of  a  man  having  money   due    to  me  in    his  hands,  which    I  order    him  to    pay 
to  another.     Now  if  I  pay  money  to  you  for    another  person,  it  is   money  had 
and    received    by    you   to    his   use.       But    where    is    the  real  and    substantial 
justice,   whether  I  in  fact  pay   money  to  you  for  a  third  person,    or    whether  I 
give  you  an  order  to  pay   so   much  money,   to   which  you    expressly   assent? 
In  reason  and  sound  law,  it  is  money  had  and  received  to  the  use  of  such  third 
person.     If  my  debtor  tenders  me  money,   which  I  *give  back  to  him,    and  tell 
him  to  pay  to  another,  he  then  in  point  of  fact  receives  money  to  the  use  of  the 
other.     But  is  there  any  real  difference,  between  such  a  case  and  the  present  ? 
As  to  the   account  stated,  I  think  that  count   also,  all  the  circumstances   consi- 
dered,  comes   within  the   fair  compass  of  the  case  ;  but  I  have  not  the  least 
doubt  as  to  the  count  for  money  had   and  received."     But  Wilson  J.  contra, 
said,  "  It  is  highly  necessary  that  the  forms  of  actions  should  be  kept  distinct : 
courts  of  justice  have,  in  my  opinion,  already  gone  quite  far  enough,  in  extend- 
ing the  favourite  count,  for  money  had  and  received.     But  I  know  of  no  case 
where  they  have  gone  so  far  as  to  allow  that  count  to  be  maintained  where  no 
money  has  in  fact   been   received  by  the   defendant.     Here  it  by  no  means  ap- 
pears that  money  was  had  or  received  by  the  defendants.     I  am  also  of  opinion 
that  this  demand  between  the  parties,  being  for  brokerage,  was  from  the  nature 
of  it,  the  subject  of  an  action  for  work   and   labour.     Now  though  it  be  true, 
that   where  a  man  is  my  debtor,  he   holds  my    money,   yet  I  cannot  accede  to 
this  as  a  general  proposition,  that  whenever  a  man  is  my  debtor,  I  am  entitled 
to  bring  an  action   against  him  for  money  had  Land  received.     A  tailor  might, 
according  to  this  rule,  bring  an  action  for  money  had   and   received   against  a 
man  who  had  not  paid  him  for  a  suit  of  clothes.     For  my   idea  is,  that  where 
no  money  has  been   actually  had    and  received,  no  action  for  money  had  and 
received  can  be  supported.     In  the  case  of  Feiintr  v.  Mcares,  (g)  money  was 


(g)  Vide  ante,  note  b. 
*381 


Chap.  4.]     Had  and  Received  to  the   Use  of  Another,   281 

in  fact  received  by  the  defendants  ;  there  the  action  might  clearly  be  maintain- 
ed. So  here  it  would  have  been  proper,  if  it  could  be  shown,  that  that  money 
was  received  by  Douglas  to  the  use  of  Delvallc."  In  the  case  of  Fenner  v. 
Meares,  just  referred  to,  it  was  determined,  that  this  form  of  action  lies  by  the 
assignee  of  a  respondentia  bond  against  the  obligor,  where  the  latter,  by  an 
indorsement  made  thereon  engaged  to  pay  the  same  to  any  assignee. 

So,  in  the  case  of  Arden  v.  Rowney,{h)  where  a  check  had  been  drawn  by 
one  Alder  upon  the  defendant ;  and  before  the  plaintiff  would  give  cash  for  it, 
he  sent  his  clerk  to  the  defendant,  and  asked  him  if  the  draft  was  a  good  one  ? 
He  said  that  it  would  be  honoured,  as  he  was  in  Alder's  debt  2001.  ;  the  clerk 
then  observed,  that  the  check  was  postdated,  and  could  not  therefore  be  recov- 
ered ;  the  defendant  said,  that  that  did  not  signify,  it  would  be  of  service  to  the 
poor  man,  and  it  should  be  paid.  Lord  Ellenborough  Ch.  J.  before  whom 
the  cause  was  tried,  ruled  that  this  was  an  appropriation  of  100/.  part  of  the 
money  which  the  defendant  said  he  owed  to  Alder,  amounting  to  200/.  and 
that  the  plaintiff  might  recover  to  that  amount  ;  upon  which  it  was  suggested 
by  the  defendant's  counsel,  that  if  it  was  to  be  taken  that  the  *plaintifTs  right  to 
recover  was  on  the  ground  of  the  appropriation  of  the  money  in  the  defen- 
dant's hands,  the  plaintiff's  right  could  not  go  beyond  the  money  actually  due 
by  Rowney  to  Alder,  and  that,  in  fact,  his  saying  there  was  200/.  in  his  hands 
was  a  mistake,  and  that  he  should  show  it  was  a  small  sum  only.  To  which 
suggestion  his  lordship  assented  ;  and  evidence  was  produced  to  show  the  real 
state  of  the  accounts,  which  was  proved  to  be  a  balance  of  80/.  and  for  which 
sum  the  plaintiff  had  a  verdict. 

4.  OF  MONEY  RECEIVED  AND  PAID  BY  BANKERS  AND  OTHERS  UPON 
OR  IN  RESPECT  OF  BILLS  OF  EXCHANGE,  PROMISSORY  NOTES, 
CHECKS,  OR  OTHER  SECURITIES  :  AND  IN  WHAT  CASES  SUCH 
MONEY  IS  RECOVERABLE  IN  THIS  FORM  OF  ACTION. 

An  action  of  indebitatus  assumpsit  lies  for  money  had  and  received  by  the  bona 
fide  bearer  of  a  note,  payable  to  bearer,  against  the  maker.  Thus  in  the  case 
of  Grant  v.  Vaughan, (i)  in  which  the  plaintiff  declared  first,  upon  an  inland  bill 
of  exchange ;  and  secondly,  upon  an  indebitatus  assumpsit  for  money  had  and 
received.  The  facts  were  as  follow  :  the  defendant,  a  merchant  in  London, 
gave  a  cash  note  upon  his  banker,  to  one  Bichnell,  a  ship's  husband,  which  note 
was  dated,  " London,  22d  October,  1703,"  and  directed  to  Sir  Charles  Asgill, 
with  this  request,  "  Pay  to  ship  Fortune  or  bearer,  so  much  ;"  Bicknell  by 
some  accident  lost  this  note.  The  person  who  found  it,  or  who  at  least  was 
in  possession  of  it,  (however  he  might  have  obtained  that  possession)  came 
four  days  after  the  note  was  payable  in  London,  to  the  shop  of  the  plaintiff, 
who  was  a  tradesman  at  Portsmouth,  and  bought  five  pounds'  worth  of  tea  of 
him,  and  gave  him  this  note  in    payment,  desiring  to  have  the  change  out  of  it  ; 


(h)  5  Esp.  Rep.  251.  (>)  3  Bur.  1516. 

*282 


282  On  Promises  to  Pay   Over  Money         [Part  II. 

the  plaintiff  stepped  out  to  make  enquiry  who  the  defendant  might  be  ;  and  up- 
on being  informed  that  he  was  a  very-  good   man,  and   that  it  was  his  hand- 
writing, he  readily  gave  the  change  out  of  the  note,   retaining  the   price  of  the 
tea.     The  defendant,  upon  being  apprized  that  Bicknell  had  lost  the  note,  sent 
notice  to    Sir   Charles  Asgill  "  not  to  pay  it,"  and  he   refused  accordingly ; 
whereupon  Grant  brought  the  present  action.     And  the  court  of  King's  Bench 
determined,  that  the  plaintiff  was  entitled  to  recover  upon  the  count  for  money 
had  and  received.     Lord    Mansfield   Ch.   J.  said,   upon  the  second  count,  the 
present  case  is  quite  clear  beyond  all  dispute.     For  undoubtedly,  an  action   for 
money  had  and  received  to  the  plaintiff's  use,  may  be  brought  by  the  bona  fide 
bearer  of  a   note  made  payable  to  bearer.     There   is   no  case  to  the  contrary. 
It  was  certainly  money  received   for  the   use   of  *the  original  advancer  of  it ; 
and  if  so,  it  is  for  the  use  of  the  person,  who   has  the  note  as  bearer.     In  this 
case,  Bicknell  himself  might  "undoubtedly  have  brought  this  action  :  he  lost  it, 
and  it  came  bona  fide,  and  in  the  course  of  trade,  into  the  hands  of  the  present 
plaintiff,  who  paid  a  full  and  fair  consideration  for  it.     Bicknell  and  the   plain- 
tiff are  both  innocent.     The  law  is  to  determine  which  of  them  is  to  stand   to 
the  loss  ;  and  by  law,  it  falls  upon  Bicknell." 

So,  money    paid  into  a  banking    house  for  the  purpose  of  taking  up  a  par- 
ticular bill,  which  was  lying  there  for  payment ;  though  the  banker's  clerk  said 
at  the  time  that  he  could  not  give  up  the  bill  till  he  had  seen  his  master ;  was 
held  to  be  money  had  and  received  to  the  use  of  the  then  owner  and  holder  of 
the  bill,  and  could  not  be  applied  by  the  bankers  to  the  general  account  of  the 
acceptor  who  paid  in  the  money.  Thus,  in  the  case  of  De  Bcrnales  v.  Fuller,  (k) 
where  it  appeared,   that  Puller  had  accepted  a  bill  for    894/.    16s.  9d.  paya- 
ble at  Fullers'1  banking-house,  of   which  bill  the  plaintiff  Be  Bcmalcs  became 
the  holder,  and  sent  it  to  his  bankers,  the  Newnhams,  to  receive  payment  when 
due.     By  exchange  of  bills  amongst  the  bankers,  the  bill  in  question  was  lodg- 
ed by  Newnhams  with  the  Fullers,  as  the  banking  house  where  it  was  made  pay- 
able.    When  the  bill  became  due,  Puller's  clerk  wept  to  Fullers,  and  told  their 
clerk  whom  he  saw  there,  that  he  had  brought  the  money  to  take  up  the  bill, 
and  he  laid  the  money  down  upon  the  counter  and  demanded  the  bill.     Fullers' 
clerk  took  up  the  money  and  kept  it,  but  did  not  deliver  up  the  bill,  saying  that 
he  would  first  speak  to  Fuller  ;  and  the  bill  was  not  delivered  up  nor  the  money 
received  by  Newnhams  (or  De  Bernales.    (There  being,  it  seemed,  some  account 
between  Puller  the  acceptor,  and  Fullers  the  bankers,  which  gave  the  latter,  as 
they  supposed,  a  lien  upon  this  money.)     Whereupon  De  Bernales,  the  owner 
of  the  bill,  brought  this  action  against  the  Fullers  for  money  had  and  received 
to  his  use  ;  considering  the  money  as  having  been  paid  to  and  received  by  them 
for  the  use  of  the  holder  of  the   bill,  whoever  he  might  be,  at  the  time  when  it 
became  due.     But  at  the    trial,  before  Lord  Ellenborovgh  Ch.  J.   at  Guildhall, 
his  lordship  thought  that  there  was  no  privity  proved  between  De  Bernales  and 


(k)  14  East  Rep.  590.  n.  a. 
>283 


Chap.  4.]    Had  and  Received  to  the  Use  of  Another-      283 

the  Fullers,  so  as  to  sustain  this  action  ;  considering  that  the  evidence  did  not 
establish  a  receipt  of  this  money  for  the  intended  purpose  for  which  it  was  di- 
rected to  be  paid  in,  namely,  to  take  up  the  bill;  but  rather  a  waiver  of  receiv- 
ing the  money  for  that  purpose  by  the  defendant's  clerk,  and  a  determination  of 
the  defendants  to  hold  it  for  their  own  use  ;  which  made  them  wrongdoers  ; 
and  therefore  that  the  action  should  rather  have  been  trover.  And  under  this 
direction  there  was  a  verdict  for  the  defendants.  But  afterwards  a  new  trial 
was  moved  for,  on  the  part  of  the  plaintiff,  or  leave  *to  enter  a  nonsuit.  And 
the  Court,  after  much  discussion,  made  the  rule  absolute  for  a  new  trial ;  con- 
sidering, as  it  appeared  that  the  money  having  been  expressly  paid  into  the 
defendant's  house  for  the  specific  purpose,  declared  at  the  time  of  taking  up 
this  bill ;  and  that  purpose  not  having  been  directly  repudiated  till  afterwards, 
it  must  be  taken  to  have  been  received  at  the  time  for  the  use  of  the  holder  of 

the  bill. 

But  in  the  case  of  Williams  v.  Everett,  (I)  which  was  an  action  for  money 
had  and  received,  brought  by  the  plaintiff  to  recover  300/.,  being  part  of  the 
amount  of  a  bill  of  1126/.  2.?.  remitted  by  one  James  Kelly  from  the  Cape  of 
Good  Hope  to  the  defendant's  house,  in  a  letter  dated  Cape  Town,  8th  July, 
1809;  m  which  Kelly  says,  "  I  remit  you  by  the  Warley  1126/.  2s.,  which  I 
particularly  request  you  will  order  to  be  paid  to  the  following  persons,  who  will 
produce  their  letters  of  advice  from  me  on  the  subject,"  &c.  Amongst  the  per- 
sons, he  named  the  plaintiff  Williams,  (Wine  merchant,  Gracechurch  Street,) 
for  300/.  And  he  afterwards  made  another  remittance  for  500/.  on  the  same 
terms.  And  then  he  adds,  "  I  desire  the  amounts  paid  each  person  to  be  put 
on  the  back  of  their  respective  bills,  &c.  And  that  every  bill  paid  off  be  can- 
celled." Williams  by  his  attorney,  long  before  the  bills  became  due,  gave  the 
defendant  Everett  notice  of  a  letter  he  had  received  from  Kelly,  ordering  his 
debt  of  300/.  to  be  paid  out  of  that  remittance,  and  offered  him  an  indemnity  of 
a  banking  house  if  he  would  hand  over  the  bill  to  him  ;  but  Everett  refused 
to  indorse  the  bill  away,  or  to  act  upon  the  letter ;  admitting,  however,  that  he 
had  received  the  letter  directing  the  application  of  the  money  in  the  manner  al- 
ready stated.  The  question  at  the  trial  was,  whether  the  plaintiff  was  entitled 
to  receive  from  the  defendants  the  amount  of  his  demand  on  Kelly  for  300/.  out 
of  the  bill  for  1126/.  2s.  which  was  admitted  to  have  been  received  by  the  de- 
fendants when  it  became  due.  The  Court  determined  that  the  action  could 
not  be  maintained.  And  Ld.  Ellenborough  Ch.  J.  in  delivering  the  judgment 
of  the  Court  said,  "  A  point  has  been  discussed  in  argument,  which  did 
not  arise  in  this  case  at  nisi  prius  ;  namely,  on  the  effect  of  a  foreign  attach- 
ment laid  on  the  money  in  the  hands  of  the  defendants  ;  but  as  the  nonsuit  was 
pronounced  independently  of  any  such  evidence,  and  before  any  proof  of  the 
foreign  attachment  was  given  or  tendered,  it  is  fit  to  consider  the  propriety 
of  the   nonsuit,  without  reference  to  such  circumstance;  it  being  our   opinion, 


(0  14  East  Rep.  582. 

-      *284 


284  On  Promises  To  Pay  Over  Money      [Part  II. 

independently  of  that  circumstance,  that  the  nonsuit  was  right.  The  question 
which  lias  been  argued  before  us  is,  whether  the  defendants,  by  receiving  this 
bill,  did  not  accede  to  the  purposes  for  which  it  was  professedly  remitted  to 
them  by  Kelly,  and  bind  themselves  so  to  apply  it ;  and  whether,  therefore,  the 
amount  of  such  bill  paid  to  them  when  due,  did  not  instantly  become,  by  operation 
*oflaw,  money  had  and  received  to  the  use  of  the  several  persons  mentioned  in 
Kelly's  letter,  as  the  creditors  in  satisfaction  of  whose  bills  it  was  to  be  appli- 
ed, and  of  course,  as  to  300Z.  of  it,  money  had  and  received  to  the  use  of  the 
plaintiff.  It  will  be  observed,  that  there  is  no  assent  on  the  part  of  the  defen- 
dants to  hold  this  money  for  the  purposes  mentioned  in  the  letter  ;  but,  on  the 
contrary,  an  express  refusal  to  the  creditor  so  to  do.  If,  in  order  to  constitute 
a  privity  between  the  plaintiff  and  defendant  as  to  the  subject  of  this  demand, 
an  assent  express  or  implied  be  necessary,  the  assent  can  in  this  case  be  only 
an  implied  one,  and  that  too  implied  against  the  express  dissent  of  the  parties  to 
be  charged.  By  the  act  of  receiving  the  bill,  the  defendants  agree  to  hold  it 
till  paid,  and  its  contents  when  paid,  for  the  use  of  the  remitter.  It  is  entire  to 
the  remitter  to  give,  and  countermand,  his  own  directions  respecting  the  bill  as 
often  as  ho  pleases,  and  the  persons  to  whom  the  bill  is  remitted  may  still  hold 
the  bill  till  received,  and  its  amount  when  received,  for  the  use  of  the  remitter 
himself,  until,  by  some  engagement  entered  into  by  themselves  with  the  person 
who  is  the  object  of  the  remittance,  they  have  precluded  themselves  from  so  do- 
ing, and  have  appropriated  the  remittance  to  the  use  of  such  person.  After  such 
a  circumstance,  they  cannot  retract  the  consent  they  may  have  once  given,  but 
are  bound  to  hold  it  for  the  use  of  the  appointee.  If  it  be  money  had  and  re- 
ceived for  the  use  of  the  plaintiff  under  the  orders  which  accompanied  the  remit- 
tance, it  occurs  as  fit  to  be  asked,  when  did  it  become  so?  It  could  not  be 
so  before  the  money  was  received  on  the  bill  becoming  due  :  and  at  that  instant, 
suppose  the  defendants  had  been  robbed  of  the  cash  or  notes  in  which  the  bill  in 
question  had  been  paid,  or  they  had  been  burnt  or  lost  by  accident,  who  would 
have  borne  the  loss  thus  occasioned  ?  Surely  the  remitter  Kelly,  and  not  the 
plaintiff  and  his  other  creditors,  in  whose  favour  he  had  directed  the  application 
of  the  money  according  to  their  several  proportions  to  be  made.  This  appears 
to  us  to  decide  the  question  ;  for  in  all  cases  of  specific  property  lost  in  the  hands 
of  an  agent,  where  the  agent  is  not  himself  responsible  for  the  cause  of  the  loss, 
the  liability  to  bear  the  loss  is  the  test  and  consequence  of  being  the  proprietor, 
as  the  principal  of  such  agent.  The  case  of  De  Bernales  v.  Fuller  &  Co., 
which  has  been  urged  in  argument  on  the  part  of  the  plaintiff,  is  clearly  distin- 
guishable from  the  present  by  this  circumstance,  that  the  defendants  in  that  case, 
i.  e.  Fuller  and  Co.,  had  antecedently  received  the  bill,  which  was  to  be  paid  at 
their  house,  from  Neumham  and  Co.  the  bankers  of  the  plaintiff  De  Bernales, 
the  holder,  for  the  very  purpose  of  receiving  payment  for  them,  the  Newnhams, 
of  such  bill ;  and  having  taken  the  bill  for  this  purpose,  the  Court  thought  that 
*285 


Chap.  1.  J     Had  and  Received  to  the  Use  of  Another.    286 

Fuller  and  Co.  could  not  by  themselves  or  their  clerk  renounce  this  purpose, 
but  must  apply  the  money  brought  by  Puller's  clerk  specifically  for  the  dis- 
charge #ofthat  bill  then  lying  at  their  house,  to  that  very  purpose  and  no  other  ; 
and  that  they  were  in  effect  to  be  regarded  in  that  case  as  the  plaintiff  De  Ber- 
nales'  agents,  through  the  intervention  of  Newnhams''  house,  for  the  purpose  of 
that  receipt,  and  could  therefore  hold  and  apply  it  to  no  other.  Here  no  agen- 
cy for  the  plaintiff  ever  commenced,  but  was  repudiated  by  the  defendants  in 
the  first  instance.  We  are  of  opinion,  therefore,  that  upon  no  principle  of  law 
can  the  defendants  be  said  to  stand  in  such  privity  in  respect  to  the  plaintiff,  as 
that  the  300.'.  claimed  by  this  action  can  be  said  to  have  been  money  had  and  re- 
ceived to  the  plaintiff's  use. 

So,  in  the  case  of  Yates  v.  Bell,(m)  where  a  bill  of  exchange,  payable  at  the 
house  of  A.  had  been  there  presented  for  payment  and  dishonoured  ;  and  the  ac- 
ceptor afterwards  remitted  to  A.  a  sum  of  money  for  the  purpose  of  enabling 
him  to  pay  the  dishonoured  bill,  and  also  another  of  less  value;  and  A.  in  an- 
swer stated  the  fact  of  the  bill  having  been  dishonoured,  but  added,  that  the 
money  received  should  be  carried  to  the  acceptor's  account,  and  did  afterwards 
pay  the  smaller  bill.  It  was  holden,  that  the  holder  of  the  original  bill  could 
not  maintain  an  action  against  A.,  there  being  no  privity  between  them.  And 
Abbott  Ch.  J.  said,  "  This  case  cannot,  in  principle,  be  distinguished  from  Wil- 
liams v.  Everett,  and  that  case  was  properly  decided.  In  De  Bernalesv.  Fuller, 
the  defendant  was  agent  of  De  Bernales  when  he  received  the  money,  and  nev- 
er would  have  received  it  but  for  that  character,  and  after  that  he  could  not  re- 
pudiate that  agency.  That  is  the  distinction  between  the  two  cases.  Where 
a  party,  to  whom  a  bill  is  remitted,  repudiates  the  trust  with  which  the  bill  is 
clothed,  that  may  give  to  the  person  remitting  the  bill,  a  right  to  bring  trover  for 
it;  but  it  does  not  give  any  right  of  action  to  the  person  to  whose  account  the 
bill  is  directed  to  be  applied  ;  and  unless  some  agreement  had  taken  place  re- 
specting the  bill  between  the  defendants  and  the  plaintiffs,  the  former  could  on- 
ly be  considered  as  holding  the  bill  for  the  use  of  the  acceptor." 

So  in  the  case  oiKilsby  v.  Williams, (n)  where  the  plaintiff  paid  into  his  own 
bankers,  a  cheque  of  250/.  drawn  upon  them  by  a  third  person,  which  they  re- 
ceived without  any  objection  ;  and  in  the  course  of  the  same  day  the  drawer  of 
the  cheque  paid  in  a  sum  of  money,  part  of  which  he  particularly  appropriated, 
leaving  a  balance  unappropriated  of  237Z.  The  bankers  who  were  then  credit- 
ors of  the  drawers  to  a  large  amount,  wrote  on  the  next  morning  to  the  plaintiff 
stating,  that  the  cheque  was  not  paid,  but  that  they  would  keep  it  in  the  hope  of 
there  being  money  to  pay  it ;  and  on  that  day  a  further  unappropriated  balance 
was  paid  in,  making  altogether  a  sum  exceeding  the  plaintiff's  cheque.  It  was 
determined  that  under  these  circumstances,  the  *plaintiff  might  maintain  money 
had  and  received  against  the  bankers  ;  and  that  the  latter,  being  his  agents  for 
receipt  of  the  money,  could  not  appropriate  the  balance  to  the  payment  either 

(m)  3    Barn.  &  Aid.  643.  (n)  5  Barn.  &  Aid.  815. 

3tJ  *286   *287 


287  On  Promises  To  Pay  Over  Money     [Part  II. 

of  their  own  general  account  against  the  drawer,  or  of  two  cheques  presented  on 
the  same  day,  but  subsequently  to  that  of  the  plaintiff,  and  paid  by  them. 

So,  in  the  case  of  Pierson  v.  Dunlop  and  others, (o)  where  it  was  determin- 
ed, that  if  the  indorsee  of  a  bill  of  exchange  who  has  received  a  navy  bill  as- 
signed to  the  drawee,  as  a  security  to  him  (thfi  indorsee)  till  the  bill  of  ex- 
change is  accepted,  deposit  such  navy  bill  with  the  drawee,  and  the  drawee  re- 
ceives the  money  upon  it,  he  is  answerable  for  the  amount  in  an  action  for 
money  had  and  received  to  the  use  of  the  indorsee,  though  he  may  have  done 
nothing  that  amounts  to  an  acceptance  of  the  bill  of  exchange. 

So,  in  the  case  of  Whitfield  v.  Savage, (p)   which  was  also  an   action  of  in- 
debitatus assumpsit  for  money  had  and  received.     The   circumstances  of  the 
case  were  as  follow  :  A  person  of  the  name  of  Dibdin   being  in  want  of  50/. 
applied  to  the  plaintiff  for  the  loan  of  that  sum,  who  gave  him  a  bill  foi  55/.  6s. 
drawn  by  himself  upon  one  Thornton,  and  accepted   by  the  latter.      Thornton 
had  effects  of  the  plaintiff  in  his  hands  to  the  amount  of  the  bill.     Dibdin  indors- 
ed the  bill  to  the  defendant,   from  whom  he  received  the  full  amount,  and  the 
defendant  indorsed  it  over  to  another  person.     The  day  before  the  bill  became 
due,  Diodin  took  50/.  in  part  payment  of  his  debt  to  the  plaintiff,  but  soon  af- 
ter he  had  paid  it  into  his  hands,  the  plaintiff,  in  the  presence  of  Dibdin,  being 
informed  that  Thornton,  the  acceptor,  was  become  insolvent,  said  "  that  it  would 
be  of  no  use  for  him  to  keep  DibdirCs   money  as  he  should  not  like  the  bill  to 
be  returned  upon  him  ;"  he  therefore  gave  to  Dibdin  a  check  on  his  banker  for 
50/.    (being  the  sum  which  he  had  just  before  received  of  him)  desiring  him  to 
take  it  to  the  defendant :  Dibdin  accordingly  gave  the  check  to  the   defendant, 
together  with  5/.  6s.  of  his  own,   to  enable  him  to  provide  for  the  bill,  telling 
him  that  Thornton  had  become  insolvent,  and  was   gone  off.     Four  days   after 
the  bill  had  become  due,  the  plaintiff  having  learnt  from   the  defendant,    that 
payment  of  the   bill  had  not  been   demanded,  desired   him  not  to  pay  it,  as  no 
notice  had  been  given  by  the  holder,  of  its  non-payment,  and  at  the  same  time, 
promised   to  indemnify  the  defendant  against   the   consequences  of  a  refusal. 
Soon  after  this,  the  bill  was  brought  to  the  defendant,  who  paid  it  notwithstand- 
ing the  caution  he  had  received  from  the  plaintiff:   whereupon  the  latter  brought 
this  action  to  recover  the  50/.  paid  to  the  defendant,  to  enable  him  to  provide 
for  the  bill. 

The  court  of  Common  Pleas  determined  that  the  plaintiff  was  entitled  to  re- 
cover in  this  form  of  action.  And  Lord  Eldon  Ch.  J.  said  :  "  With  *respect  to 
the  objection,  that  this  action  for  money  had  and  received,  ought  to  have  been 
brought  by  Dibdin,  instead  of  the  present  plaintiff,  it  appears  to  me,  that  the 
action  is  well  brought,  for  these  reasons :  the  night  before  the  bill  became  due, 
the  plaintiff  sent  the  money  in  dispute  to  the  defendant,  it  was  the  plaintiff 
therefore  that  advanced  it.  It  is  tiue,  indeed,  that  Dibdin  being  the  person  lia- 
ble in  conscience  before  either  the  plaintiff  or  defendant,  had  previously  put  50/. 

(o)  Cowp.    571.  (p)  2  Bos.  &  Pul.  277, 

*288 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.     288 

into  the  plaintiff's  hands  ;  but  as  the  money  in  dispute  was  actually  sent  by 
the  plaintiff  to  the  defendant,  the  former  had  a  right  to  call  upon  the  latter  to 
restore  it  to  him.  As  between  the  plaintiff  and  defendant  the  money  may  be 
considered  as  advanced  by  the  plaintiff:  and  in  what  manner  the  plaintiff  and 
Dibdin  might  settle  between  themselves,  does  not  concern  this  defendant.  I 
should  think,  as  having  actually  advanced  it,  he  had  a  right  to  recover  it,  even 
if,  after  the  recovery,  he  held  it  as  a  trustee  for  Dibdin.  In  contemplation  of 
law,  the  plaintiff  has  lost  the  value  of  his  effects  in  the  hands  of  the  acceptor  ; 
and  it  is  on  that  principle  that  notice  of  non-payment  is  required.  In  contem- 
plation of  law,  he  must  ultimately  have  been  the  loser  by  the  failure  of  the  ac- 
ceptor. He  therefore  deposited  the  money  with  the  defendant  to  answer  the 
bill  if  duly  demanded.  But  when  the  holder  was  no  longer  entitled  to  enforce 
payment  of  the  bill,  the  money  so  deposited  must  be  considered  as  remaining 
in  the  defendant's  hands,  for  the  use  of  the  plaintiff,  and  the  defendant  having 
taken  upon  himself  to  dispose  of  that  money  in  payment  of  the  bill,  after  no- 
tice to  abstain  from  so  doing,  and  after  an  offer  of  indemnity,  is  in  law  liable  to 
answer  to  the  plaintiff  for  the  amount." 

But  a  mere  promise  by  a  debtor  to  his  creditor,  that  if  he  would  draw  a  bill 
upon  him,  at  a  certain  date  for  the  amount  of  his  demand,  he  should  then  have 
the  money,  and  would  pay  it,  does  not  amount  in  law  to  an  acceptance  of  the 
bill  when  drawn:  and  an  indorsee  for  a  taluable  consideration,  between  whom 
and  the  drawee  no  communication  passed  at  the  time  of  his  taking  the  bill,  can 
neither  recover  upon  the  count  as  for  an  acceptance  of  the  bill,  nor  on  the  gen- 
eral counts  as  for  money  had  and  received,  &c.(y) 

So,  where  the  drawee  of  a  bill  of  exchange,  upon  its  being  presented  to  him 
by  the  indorsee,  accepted  the  bill,  and  said,  that  he  expected  a  remittance  from 
the  drawer  in  a  few  days,  and  that  as  he  had  a  bill  of  the  drawer  in  his  hands 
which  would  be  paid,  he  would  take  all  risks  ;  these  circumstances  do  not 
amount  to  sufficient  evidence  to  entitle  the  indorsee  to  recover  against  the 
drawee  the  amount  of  the  bill  on  a  count  for  money  had  and  received,  after  fail- 
ing to  establish  by  evidence  the  special  count  upon  the  bUl.(r) 

So,  in  the  case  of  Stewart  v.  Fry,(s)  where  A.  accepts  a  bill,  made  *paya- 
ble  at  the  house  of  the  defendants,  and  which  is  indorsed  to  the  plaintiffs,  who 
discount  it.  The  bill  is  presented  to  the  defendants,  when  due,  and  dishonour- 
ed :  two  days  afterwards  the  money  to  take  up  the  bill  is  remitted  to  the  defen- 
dants, and  they  are  requested  to  follow  it  in  whosesoever  hands  it  may  be  ;  they 
tender  the  money  to  the  plaintiffs,  who  had  sent  back  the  bill  the  day  before  to 
the  drawers.  In  the  meantime,  the  defendants  received  an  order  from  a  house 
(to  which  the  letter  inclosing  the  remittance  referred  them  for  advice)  to  hold 
the  money  to  the  credit  of  that  house,  as  they  had  by  the  desire  of  A.;  the  accep- 
tor, advanced  him  to  the  amount  of  the  money  then  in  the  defendants'  hands  for 
the  purpose  of  taking  up  the  bill.     It  was  holden,   that  this  was  a  sufficient 

(q)  Johnson  v.  Collings,  1  East  Rep.  98.  (s)  Holt  Ni.  Pri,  372.  1  Mo.  372.  S.  C. 

(r)  Whitwell  v.  Bennttl,  3  Bos.  &  Pul.  559. 

*289 


289         On  Promises  To  Pay  Over  Money  [Part  II. 

countermand  of  the  money  on  the  part  of  A.,  and  that  the  defendants  were 
not  liable  to  an  action  for  money  had  and  received,  brought  by  the  plaintiffs  on 
their  again  getting  back  the  bill  into  their  possession. 

If  A.,  pays  money  into  a  banker's  for  a  specific  purpose,  and  the  banker's 
clerk,  by  mistake,  pays  this  money  to  B.,  who  has  no  right  to  it;  A.  cannot 
maintain  an  action  against  B.  to  recover  it  back.  Thus,  in  the  case  of  Rogers 
v.  Kelly,(l)  which  was  an  action  for  money  had  and  received  to  recover  the  sum 
of  130/.  under  the  following  circumstances:  the  plainiff  having  indorsed  a  bill 
drawn  by  one  L.  C.  for  130/.  payable  at  Messrs.  Austin  and  Co.  and  finding 
that  it  would  not  be  honoured  by  the  acceptor,  paid  in  this  sum  of  money  to  the 
bankers  for  the  purpose  of  retiring  it.  The  defendant  held  another  bill  of  ex- 
change for  the  same  sum,  accepted  by  the.  same  person,  due  the  same  day,  and 
payable  at  the  same  place.  The  latter  bill  being  presented  for  payment 
first,  and  no  funds  being  provided  to  pay  it,  the  banker's  clerk,  by  mistake,  gave 
the  defendant  the  130/.  paid  in  by  the  plaintiff  to  satisfy  the  bill  to  which  he 
had  put  his  name.  For  the  plaintiff  it  was  contended,  that  as  the  money 
had  been  paid  in  for  a  specific  purpose,  and  as  the  very  money  paid  in 
had  been  given  by  mistake  to  the  defendant,  it  was  to  be  considered  as  ear 
marked,  and  might  be  followed  by  the  person  to  whom  it  really  belonged  :  but 
Lord  EUenborough  Ch.  J.  said,  "  There  is  no  privity  between  the  parties  to 
this  suit.  The  plaintiff's  claim  is  on  the  bankers,  and  they  must  seek  their  rem- 
edy against  the  defendant  the  best  way  they  can.  The  plaintiff's  money  must 
still  be  considered  as  in  the  hands  of  the  bankers  ;  his  account  with  them  is 
the  same  as  if  this  mistake  had  not  been  committed." 

If  a  person  discounts  bills  with  a  banker,  and  receives,  in  part  of  the  dis- 
count, other  bills  not  indorsed  by  the  banker;  and  which  bills  turnout  to  be  bad, 
the  banker  is  not  liable.  Thus,  in  the  case  of  Fydell  v.  Clark,(u)  which  was  an 
action  for  money  had  and  received  :  the  *plaintiff  had  employed  his  brother 
Richard  Fydell  to  discount  certain  promissory  notes  to  the  amount  of  8000/. 
with  the  defendants,  who  were  bankers,  and  they  gave,  in  lieu  of  money,  other 
notes  and  bills,  but  which  they  did  not  indorse,  it  not  being  their  practice  to  in- 
dorse bills  so  given.  Part  of  them,  viz.  to  the  amount  of  4300/.  turned  out  to 
be  bad  ;  and  the  present  action  was  brought  to  recover  this  sum.  But  Lord 
Kenyo7i  Ch.  J.,  before  whom  the  cause  was  tried,  said,  "  If,  in  the  discount, 
Richard  Fydell  took  the  bills  and  notes  in  question  in  lieu  of  money,  he  must 
be  bound  by  it ;  for  the  bankers  parted  with  them,  supposing  them  to  be  good, 
and  he  took  them  under  the  same  impression.  Having  taken  them  without 
indorsement,  he  has  taken  the  risk  on  himself.  They  were  the  holders  of  the 
bills,  and  by  not  indorsing  them,  have  refused  to  pledge  their  credit  to  their 
validity ;  and  Richard  Fydell  must  be  taken  to  have  received  them  on  their 
own  credit  only."  His  Lordship  concluded  with  observing,  therefore,  that  the 
action  could  not  be  supported. 

So,  where  A.,  residing,  at  X.,  employs  B.,  residing  at  Y.,  to  procure  payment 

(')  2  Camph.  123.  (v)   1  Esp.  Rep.  447. 

•290 


1 


Chap.  4.]  Had  and  Received  to  the    Use  of  Jlnother.     £90 

of  a  bill  there,  and  to  remit  the  produce  directed  to  him  at  X.,  and  E.  receives 
payment  of  the  bill,  but  remits  the  product,  to  ^  Z.  fur  A.'s   use, 

whereby  the  whole  gets  into  the-  ha.  ds  of  A.'s  creditors.  A.  cannot  maintain 
an  action  for  money  had  and  received  against  B.  to  recover  the  amount  of  the 
sum  received  inpayment  of  the  bill.(u) 

So,  in  an  action  for  money  had  and  received  by  the  holder  of  a  bill  of  ex- 
change against  a  person  who  has  received  a  sum  of  money  from  the  acceptor 
to  satisfy  it,  any  defence  may  be  set  up  which  would  have  been  available,  if 
the  action  had  been  brought  against  the  acceptor  himself,  (w) 

So,  where  a  sum  of  money  has  been  lodged  with  a  party  to  indemnify  him 
against  bills  of  exchange  which  he  has  accepted  for  the  accommodation  of 
another,  an  action  will  not  lie  against  him  to  recover  the  money  while  the  bills 
are  outstanding,  although  the  statute  of  limitations  has  run  upon  them,  (a?) 

5.  OF  MONEY  RECEIVED  ON  BANKERS'  CHECKS,  BILLS  OF  EXCHANGE, 
PROMISSORY  NOTES,  OR  OTHER  SECURITIES  EITHER  POST  DATED, 
OR  WITH  FICTITIOUS  OR  FORGED  NAMES  THEREON. 

1.  Of  Post  Dated  Checks,  &c] — If  a  post  dated  check,  upon  being  pre- 
sented, is  paid  for  the  honor  of  the  drawer,  in  expectation  of  deceiving  funds 
from  him  :  but  the  holder  knowing  that  the  drawer,  at  the  time  of  presenting  the 
check,  was  insolvent,  and  that  it  was  post  dated,  and  therefore  void,  he  is  liable 
to  refund  the  money  so  paid,  in  an  action  of  indebitatus  assumpsit  for  money  had 
and  received.  Thus,  in  the  case  of  Martin  v.  Morgan, (y)  which  was  an  action 
for  money  had  and  received  under  the  following  circumstances :  the  defendant 
had  had  accommodation-bill  transactions  with  the  firm  of  Burmester  &l  Co., 
and  in  the  course  of  these  transactions,  a  check  on  the  plaintiffs  for  995/.  \5s. 
Id.  was  given  by  Burmester  and  Co.  to  the  defendants  on  the  9th  of  February, 
post  dated  for  the  19th,  to  meet  a  bill  falling  due  on  that  day.  The  defendants 
finding  that  Burmester  and  Co.  were  in  bad  circumstances,  pressed  them  for 
400/.,  and  threatened  to  present  the  check  unless  they  received  that  sum. 
Burmester  and  Co.  desired  the  defendants  not  to  do  this,  telling  them  that  they 
had  no  funds  in  the  plaintiff's  hands  to  meet  such  a  demand.  Burmester,  in 
company  with  one  of  the  defendants,  then  went  to  Minet  for  assistance ; 
and  Minet,  after  inspecting  the  books  of  Burmester  and  Co.,  told  the  defen- 
dants that  Burmester  and  Co.  were  insolvent.  One  of  the  defendants  then 
said,  that  he  would  wait  till  four  o'clock,  and  unless  he  received  400/.  Horn 
Burmester  and  Co.  by  that  time,  should  present  the  check  and  expose  them  on 
'Change.  Instead  of  waiting  till  four,  the  defendants  presented  the  check  at  a 
quarter  after  three,  and  obtained  payment,  the  plaintiffs  expecting  to  receive 
funds  from  Burmester  and  Co.,  though  they  had  not  any  in  their  hands  at  the 
time  the  check  was  presented.     At  20  minutes  before  four,  Burmester  and  Co. 

(f)  Duncan  v.  Skipwith,  2  Campb.  68.  (x)  Morse  v.  Williams,  3  Campb.  418. 

(u>)  Redshaw   v.  Jackson,   1    Campb.  372.         (y)   1  Brod.  &  Bing.  "289.     3  Mo.  635.  S.  C. 
See  also  Baktr  v.  Birch,  3  Campb.  107. 

»291 


291  On  Promises  To  Pay  Over  Money        [Part  II. 

sent  a  notice  to  the  plaintiffs  not  to  pay  any  more  on  their  account.  The 
plaintiffs  were  wholly  ignorant  of  Burmester  and  Co.'s  insolvency,  of  the  bill 
transactions  between  them  and  the  defendants,  and  of  the  circumstance  of  the 
check  being  post  dated.  The  Court  were  of  opinion,  that  the  plaintiffs  were  en- 
titled to  recover  the  money  so  paid  to  the  defendants.  And  Dallas  Ch.  J.  said? 
"As  between  the  bankers  and  the  defendants,  what  are  the  facts?  An  illegal 
draft  is  presented  :  so  illegal,  indeed,  that  if  the  bankers  had  knowledge  of  such 
illegality,  they  would  have  been  liable  to  a  penalty  of  100/.,(s)  certainly  if  they 
had  known  that  they  would  not  have  paid  the  bill ;  they  were  therefore  kept 
in  the  dark  ;  and  by  whom  1  By  the  very  parties  who  now  seek  to  retain  the 
money  so  unfairly  obtained.  Now,  is  there  any  case  in  which  the  Court  will 
allow  a  party  to  take  advantage  of  his  own  illegal  act  1  Undoubtedly  the 
defendants  have  no  means  of  meeting  this  objection  to  their  claim  ;  but  are 
they  better  entitled  on  the  other  ground  ?  It  is  urged,  that  the  plaintiffs  knew 
they  had  no  funds  of  Burmester,  and  Co.  ;  but  did  they  know,  as  the  defendants 
did,  that  they  would  have  none  at  four  o'clock  ?  On  the  contrary,  they  had 
*every  reason  to  expect  an  early  remittance  from  Burmester  and  Co.  The  defen- 
dants knowing  there  would  be  no  such  remittance,  and  availing  themselves  of 
every  advantage,  hurry  to  the  banking-house,  and  procure  payment  of  the 
check.  Knowing  the  draft  to  have  been  illegal,  they  cannot,  in  point  of  justice, 
have  any  claim  to  retain  a  sum  obtained  in  such  a  manner."  And  Richardson 
Just,  said,  "  The  defendants  knew  that  Burmester  and  Co.  were  in  a  state  of 
probable  insolvency,  and  concealed  this  from  the  plaintiffs,  who  were  ignorant 
of  it.  This  brings  the  case  within  the  rule  of  law,  that  a  party  paying  money 
in  ignorance  of  circumstances  with  which  the  receiver  is  acquainted,  is  not  on 
ecrual  terms  with  him,  and  therefore  entitled  to  recover  it  back." 

2.  Of  Money  Received  on  Bills,  &c.  with  Ficticious  or  Forged  Names 
thereon.]  —  The  indorsee  of  a  promissory  note  may  maintain  the  like  form 
of  action  against  the  maker,  to  recover  the  amount  of  a  forged  note,  given  in 
part  payment.  Thus,  in  the  case  of  Dimsdale  v.  Lanchester,  (a)  which  was  an 
action  of  indebitatus  assumpsit  for  money  paid,  and  had  and  received ;  and  on 
the  trial,  it  appeared  in  evidence,  that  the  defendant  having  given  her  promisso- 
ry note  for  63/.,  it  was  paid  into  the  hands  of  the  plaintiffs,  who  were  bankers  ; 
the  payee  having  regularly  indorsed  it.  The  note  was  sent  to  the  defendant  by 
a  notary  for  payment;  and  inpayment  of  it,  he  received  in  part  a  10/.  note, 
which  turned  out  to  be  a  forgery  :  and  to  recover  the  amount  of  which  the  pre- 
sent" action  was  brought.  The  counsel  for  the  defendant  objected,  that  the 
plaintiffs,  being  indorsees  of  the  first  note,  ought  to  have  declared  thereon  as 
indorsees,  and  given  notice  to  the  defendant  to  produce  it  upon  the  trial :  and 
as  the  only  dealing  was  through  the  medium  of  that  note,  there  was  no  mo- 
ney of  the  plaintiffs  had  and  received  by  the  defendant.  But  Lord  Ellenbo- 
rough  Ch.  J.,  before  whom  the  cause  was  tried,  said,  he  thought  the  action 
was  maintainable  ;  for  when  a  person  has  put  his  name  to  a  promissory  note, 


(:)  Vide  55  Geo.  3.  c.  184.  s.  12.  («)  4  Esp.  Rep.  201. 

*292 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.    292 

he  thereby  acknowledges  that  he  has  money  in  his  hand  of  the  payee  of  the 
note  ;  and  undertakes  to  pay  it  to  whoever  is  legally  entitled  to  receive  it ;  that 
is,  to  the  person  who  shall  have  paid  for  it  a  good  consideration,  and  who  has 
thereby  become  the  legal  holder  of  the  note. 

So,  in  the  case  of  Tallock  v.  Harris,  (b)  which  was  an  action  at  the  suit  of 
the  indorsee  of  a  bill,  payable  to  a  fictitious  payee,  against  the  acceptor,  who  was 
also  one  of  the  drawers  ;  the  declaration  contained  counts  for  money  paid, 
and  for  money  had  and  received.  It  appeared  upon  the  evidence,  that  the 
defendant  was  indebted  to  one  of  the  indorsers,  and  sent  him  this  bill,  for 
which  he  was  credited  in  account,  and  that  the  plaintiff  paid  that  indorser 
the  value  of  the  bill :  and  upon  a  demurrer  to  the  evidence,  the  Court  of 
King's  Bench  held,  that  the  *plaintiff  was  entitled  to  recover  under  the  counts 
for  money  paid,  and  money  had  and  received,  and  he  had  judgment  according- 
ly. And  in  the  case  of  Vere  v.  Lewis,  (c)  which  was  a  similar  action  to  the 
last,  except  that  the  defendant  was  not  one  of  the  drawers,  and  there  was  no 
evidence  that  he  received  any  value  for  the  bills  ;  upon  which  it  was  urged  the 
plaintiff  could  not  recover  upon  the  money  counts  :  but  the  Court  said  the  ac- 
ceptance was  evidence  that  he  had  received  value  from  the  drawers,  and  the 
plaintiff  had  judgment. 

So,  in  Bennett  v.   Farnell,  (d)  where  it  was  holden,  that  a  bill  of  exchange 
made  payable  to  a  fictitious  person  or  his  order,  is  neither,  in  effect,  payable  to 
the  order  of  the  drawer,  nor  to  bearer,  but  is  completely  void  :   and  therefore  if 
money,  paid  by  the  holder  of  such  a  bill   as  the   consideration  for  its  being  in- 
dorsed to  him,  gets  into  the  hands  of  the   acceptor,  it   may  be  recovered  back 
from  him  in  an  action  for  money  had  and  received.     And  Lord  Ellcnborough 
Ch.  J.,   in  delivering  his  opinion  upon  the  case,  said,  "  I  will  admit  any  evi- 
dence of  value  having  been  received  by  the  defendant.     If  Bennett's  money 
has  found  its  way  to  him,  he  shall  not  be  allowed  to  retain  it.     In  that  case  he 
has  money  drily  in  his  hands  belonging  to  another  person  ;  and  it  may  be  re- 
covered from  him  as  money  had  and  received.     But  the  bill  being  made   paya- 
ble to  George  Abney  or   order,  the  plaintiff  cannot   sue  upon  it,  either  as  the 
mere  bearer,  or  as  indorsee  of  Robert  Abney.     Where  a  bill  is  payable  to  the 
order  of  a  particular  person,  an  order  from  this  person  must  be  shown  by  any 
one  who  would  make  title  to  the  bill."     And  upon   this  case  being   afterwards 
brought  before  the  Court  of  King's  Bench,  Lord  Ellenborough  Ch.  J.  observed, 
that  he  conceived  himself  bound  by  Minet  v.  Gibson,  and  the  other  cases  upon 
this  subject  which  had  been  carried  up  to  the  House   of  Lords,  (though   by  no 
means  disposed  to  give  them  any  extension,)   and  that  if  it  had  appeared,  that 
the    defendant    knew   George  Abney,  the  payee,  to  be  a   fictitious  person,  he 
should  have  directed  the  jury  to  find  for  the  plaintiff. 

So,  where  money  has  been  paid  upon  a  forged  bill   of  exchange   to  a  bona 


(b)  3  Term   Rep.   174.     See   also   1  H.        (d)  1  Campb.  130.;  and  see   the  several 
Bl.  313.  &  569.  cases  there  cited  in  notis. 

(c)  3  Term  Rep.  182. 

*293 


293  On  Promises  To  Pay  Over  Money     [Part  II. 

fide  holder,  who  had  given  value  for  it,  the  money  cannot  be  recovered  back 
from  him.     This  point  was  determined  in  the  case  of  Price  v.  Neaie,(e)  where 
two  forged  bills  of  exchange,  purporting  to  be  drawn  by  Benjamin  Sutton  upon 
the  plaintiff,  who  had  effects  of  Sutton's  in  his  hands,   and  therefore   accepted 
them.     These  bills  were  indorsed  to  the  defendant,  and  paid  by  the  plaintiff 
when  due.     It  afterwards  turned  out  that  the  drawer's  name  had  been  forged, 
and  the  party  hanged  for  the  forgery.     But  that  the  defendant  Neale  acted  in- 
nocently and  bona  fide,  without  the  least  privity  or  suspicion  of  the   forgeries, 
and  *paid  the  whole  value  of  the  bills.     Upon   the   trial,   however,  the  jury 
found  a  verdict   for  the  plaintiff,  subject  to  the  opinion    of  the  Court  of  King's 
Bench  upon  this  question, — "  Whether  the  plaintiff,   under   the  circumstances 
of  this  case,  could   recover  back  from  the  defendant  the  money  he  had  paid  on 
the  bills,  or  either  of  them  ?"  The  Court  were  of  opinion  that  the  plaintiff  was 
not  entitled  to  recover  back  any  part  of  the  money  he  had  so  paid.     And  Lord 
Mansfield   delivered   his   opinion  as   follows,  "This  is  an  action  for  money 
had  and  received  to  the  plaintiff's  use,    in  which    action    the  plaintiff  cannot 
recover  the  money  unless  it  be  against  conscience  in  the  defendant  to  retain 
it ;  and  great  liberality   is  always   allowed   in  this  sort  of  action.     But  it  can 
never  be  thought  unconscientious  in  the  defendant  to  retain  this  money,  when  he 
has  once  received  it  upon  a  bill  of  exchange  indorsed  to  him  for  a  fair  and  val- 
uable consideration,  which  he  had  bona  fide  paid,    without  the  least  privity    or 
suspicion  of  any  forgery.     Here  was  no   fraud,  no  wrong.     It  was  incumbent 
upon  the  plaintiff  to  be  satisfied  that  the  bill  drawn  upon  him  was  the  drawer's 
hand  before  he  accepted  or  paid  it:  but  it  was  not    incumbent   upon  the  defen- 
dant to  inquire  into  it.     Here  was  notice  given  by  the  defendant  to  the  plaintiff 
of  a  bill  drawn  upon  him  ;  and  he  sends  his  servant  to  pay  it  and  take  it  up. 
The    other  bill    he   actually    accepts  ;  after  which  acceptance   the  defendant 
innocently  and  bona  fide  discounts  it.     The  plaintiff  lies  by  for  a  considerable 
time  after  he  has  paid  these  bills  ;  and  then  found  out  that  they  were  forged  ;  and 
the  forger  comes  to  be  hanged.     He  made  no   objection  to  them  at  the  time  of 
paying  them.      Whatever    neglect  there  was,   was    on  his    own    side.      The 
defendant  had    actual   encouragement   from  the  plaintiff  himself  for  negotiat- 
ing  the  second  bill,  from  the  plaintiff's  having,  without  any  scruple  or  hesita- 
tion, paid  the  first :  and  he  paid  the  whole  value,   bona  fide :  it  is  a  misfortune 
which    has    happened    without    the   defendant's    fault  or  neglect.       If   there 
was  no  neglect  in  the  plaintiff,  yet  there  is   no  reason  to  throw  off  the  loss  from 
one  innocent  man  upon  another    innocent  man :  but,   in  this  case,  if  there  was 
any  fault  or  negligence  in  any  one,  it  certainly  was  in  the  plaintiff,  and  not   in 
the  defendant." 

But  in  the  case    of  Ancher  and   others  v.    The  Goveronor  and  Company  of 
the  Bank  of  England,  (/)  where  it   appeared  that  one  Captain  Dahl,  a  Dane, 
and  resident  in  Denmark,  being  indebted  to  the  house  of  Claus  Heide  and  Co.,  in 


(e)  3  Bur.    1354.  (/)  Doug.  637. 

'294 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.      294 

London,  applied  to  one  M&stue,  to  procure  him  a  bill  in  order  to  discharge  the 
debt.      McMlue  accordingly  obtained  a  bill  from  the  plaintiffs  at  Christiana,  on 
Claus  Heide  and  Co.,  with  whom  they  had  correspondence;  which  bill  was  as 
follows: — "  Christiana,  17th  January,  1778.     Two  months  after  sight,  please 
to  pay  this  our  sole  bill  of  exchange  to  Mr.  Jans  Mozstue  or  order,  one  hundred 
and  twenty  *pounds  sterling,  value  in  account,  and  place  it  to  account  as  per  ad- 
vice, from  Karon  widow  of  Christian  Ancher   and  sons.     To  Messieurs  Claus 
Heide  and  Co.  of  London.'1''    On  this  bill  was  written  by  Mozstue  an  indorsement 
in  the  Danish,  language  of  this  import :   "  The  within  must  be  credited  to  Cap- 
tain Morten  Larsen  Dahl,  value  iu  account.      Christiana,   17th  January,    1778. 
Jens  Ma&stue."     And  it  was  remitted  to  Claus  Heide  and  Co.   in   the  following 
letter  . — "  Agreeable  to  the  desire  of  Captain  Morten  Larsen  Dahl  of  Arendall, 
I  have  inclosed  for  his  account  sent  you  Karen  Ancher  and  son's  bill  on  your- 
selves for  120/.,  which  you  will,  on  receipt,   be   pleased   to  credit  his  account 
with,  and  advise  him  of  the  same/' — The  bill  was  received  by  Claus  Heide  and 
Co.,  and  accepted,  and  they  gave  notice  to  the  plaintiffs  and  to  Dahl  that  they 
had  received  it  and  placed  it  to  his  account.     Afterwards  a   forged  indorsement 
in  English  was  written  upon  it,  as  follows: — "  For  me  to  pay  Mr.  Detleff  D. 
Mailer   or  order,     "  Morten    L.   Dahl."       Mailer,    who   was   a  clerk  in    the 
house  of  the  acceptors,  carried  the  bill  thus  indorsed,  but  which  never  had  been 
in  the  hands  of  Dahl,  to  the  Bank,  and  indorsed  it  with  his  own  name ;  upon 
which  it  was  discounted  in  the  ordinary  course  of  business.      When  the  day  of 
payment  came,  the  acceptors  having  become  insolvent,  and  Muller  having  ab- 
sconded, the  bill  was  protested ;  and  one  Fulgberg,  as  a  friend  or  agent  for  the 
plaintiffs,  came  to  the  Bank  and  paid   it  for  their  honour  as  the  drawers  ;    but 
the  forgery  having  been  discovered,  this  action  fur  money  had  and  received  was 
brought  against  the  Bank,  on  the  ground  that  the  bill  was  not  negotiable  on  ac- 
count of  the  special  indorsement,  and  that  it  had,  therefore   been  discounted  by 
the  Bank  in  their  own  wrong,  and  the   money   paid  by  Fulgberg,  to  take  it  up, 
paid  in  mistake.     Lord  Mansfield,  before    whom   the  cause  was  tried,  directed 
a  nonsuit  ;  but  the  case  was   afterwards   brought  before   the    Court  of  King's 
Bench,    on  a  motion  for  a  rule  to  set  aside   the  nonsuit,    and   for  a  new  trial, 
which  was  made    absolute. (*)      And   Lord   Mansfield  said,  "The  ground  of 
the  nonsuit  was,  that  the  purpose  for  which  the  bill  w^as  drawn  was  answered, 
it  having  been  applied  to  the   credit   of  Dahl,  and   he   having   acquiesced.     It 
therefore  occurred  to  me,  that  the  drawers    had  received  no  injury,  and  had  no 
interest :   but  (which  was  not  attended  to  at  the'trial,)  there  has  been  a  second 
payment  for  the  honor  of  the   plaintiffs  ;  and  it  is  contended  that  a  considera- 
tion has  arisen  on  that  second  payment.     Where  there  is  equal  equity,  posses- 
sion must  prevail ;  and   the  equity   is  equal  between  persons  who  have   been 
equally  innocent,  and  equally  diligent.     The  question  therefore  is,  whether  the 
Bank  has   been  equally   diligent.     A   bill,  though  once  negotiable,  is  certainly 


(+)   Duller  Just.,  however,  dissented  from  the  determination  of  the  Court  on  this  case. 
37  *295 


296  On  Promises  To  Pay  Over  Money     [Part  II. 

capable  of  being  restrained.  I  remembei  this  being  determined  *upon  argu- 
ment. A  blank  indorsement  makes  the  bill  payable  to  bearer  ;  but  by  a  spe- 
cial indorsement,  the  owner  may  stop  the  negotiability.  Mvestue  did  so  here. 
It  does  not  seem  to  me  that,  after  the  special  indorsement  by  Mozstue,  Dahl 
himself  could  have  indorsed  it  over.  Mcestue  did  not  mean  to  make  himself 
answerable  as  an  indorser,  or  to  enable  Dahl  to  raise  money  on  the  bill.  The 
Bank  could  not  have  maintained  an  action  on  the  bill  against  the  plaintiffs :  it 
was  their  negligeftce  not  to  read  the  special  indorsement." 

So,  in  Smith  v.  Mercer,  (g)  which   was  an  action  for  money  had  and  receiv- 
ed.    And,  at  the  trial,  it  was  proved,  that  the  plaintiffs  were   bankers  in  Lon- 
don, with  whom  Maurice  Evans  kept   cash  ;  the   defendants   were    bankers  at 
Tunbridge,  and  were  bona  fide  holders  for   a  valuable   consideration,   paid  by 
them  to  Peter  Le  Souef,  of  a    bill  of  exchange,    drawn   on  the  15th  of  Feb. 
1811,  by  Thomas   Temple,  at  65  days'  date,  on  Maurice  Evans  for  120/.  pay- 
able to  the  drawer's  order,  and   indorsed  by  Temple  and  P.  Le   Souef.     The 
bill,  when  it  came  to  the    defendant's  hands,   appeared  to  be   thus  accepted  : 
"  Smith,  Payne,  and  Smiths,  Maurice  Evans.'''1     This  acceptance  was  forged. 
Before  the  bill  was  due,  the  defendants   indorsed  the   same,  and  sent  it  with 
their  indorsement  thereon  to  their    corresponding   bankers  and  agents  in  Lon- 
don, Spooner  and  Co.,  to  be  received  for  them   at  maturity.     Upon  the  bill  be- 
ing presented  by  Spooner  and   Co.  to  the   plaintiffs   for  payment  on  the  23d  of 
April,  when  it  became  due,  they  immediately  paid  the  amount  to  Spooner  and 
Co.,  who  paid  the  amount  in  account  to  the  defendants  ;  all  the  parties  being 
at  the  time  equally  ignorant  of  the   forgery.     The    plaintiffs  sent  the  bill  to 
Evans  at  the  usual  time,  with  the  other  vouchers  of  payments  made  for  him, 
and  Evans  immediately  returned  the   same  to   them  as  forged,  and  refused  to 
allow  the  payment  thereof,  as  a  payment  made  on  his  account.     The  plaintiffs 
on  discovering  the  forgery,  on  the  30th   of  April  1814,  gave  notice   to   the  de- 
fendants   that    the    acceptance    was    forged,   and    required   the    defendants  to 
repay    the  money,   which  they  refused    to   do.     The   Court   determined,   that 
the    plaintiffs     could     not   recover   from    the    defendants    the    amount    which 
they  had   thus  paid  him   on  the    forged  acceptance,  upon  the  ground  that    if 
the  acceptance  had   been   genuine,    and   the  plaintiffs    had   refused  payment, 
the    defendants    had    their   remedy     against    the    supposed    acceptor;     or    if 
they  failed    to  obtain   the    amount    from  him,  they  had  their"  remedy  against 
the  prior  parties   on   the  bill.     The   acceptance  carried  with  it  an  order  on  the 
bankers  of  the  supposed  acceptor  to  pay   the   money :  it   purported  to  be   an 
order  of  Evans,    whose   bankers   the  plaintiffs   were.     It   was   incumbent   on 
them  to  see  to  the  reality  of  that  order  before  they  obeyed  it ;  and  if,  by  obey- 
ing it,  they  are  sufferers,  they  ought  not  to  throw  on  another  a  loss  accruing 
"without  fault   of  his.     But   Mr.  Just.    Chambre  differed  from  the  majority  of 
the  Court,  and  was  of  opinion  that  the  plaintiffs  were  entitled  to  recover,   upon 
}he  ground,  "  that  the  money  was  paid  without  any  consideration,  and  under  a 


(g)  6  Taunt.  76. 
*296  *297 


Chap.  4.]     Had  and  Received  to  the   Use  of  Another,   297 

mistake  ;  and  not  only  under  a  mistake,  but  under  a  representation  made  to 
the  plaintiffs  by  the  defendants,  who  indorsed  the  bill  with  that  forced  accep- 
tance on  it ;  that  the  plaintiffs  were  required  and  directed  so  to  pay  it  by  the 
person  whose  agents  they  were  in  money  transactions."  But  in  the  case  of 
Crockford  v.  Winter  (h)  it  was  held,  that  where  money  was  obtained  under  a 
forged  certificate  of  a  marriage,  it  may  be  recovered  back  in  this  form  of  ac- 
tion :  and  it  is  no  answer  that  the  defendant  was  really  entitled  to  the  money, 
if  such  right  depended  upon  a  question  not  of  common  law  jurisdiction. 

6.    OF    MONEY    RECEIVED    BY    OR    FROM    AGENTS,    SERVANTS,    AND 
OTHERS,    ACTING  FOR  THEIR  PRINCIPALS. 

If  money  be  received  by  an  agent  for  the  use  of  his  principal,  and  he  refuses 
to  pay  it  over,  an  action  of  indebitatus  assumpsit  for  money  had  and  received 
lies  against  him  at  the  suit  of  his  principal. (?)  80,  where  agents  in  England 
effect  a  policy  of  insurance  for  a  correspondent  abroad,  on  which  a  loss  happens, 
and  he  draws  a  bill  upon  them,  which  is  presented  to  them  for  acceptance  by 
the  indorsee ;  upon  which  they  say,  that  they  cannot  accept  it,  having  no  funds 
in  hand  ;  but  that  on  a  settlement  with  the  underwriters  it  shall  be  paid  ;  am? 
after  this  the  agents  receive  from  the  underwriters  a  sum  less  than  the  amount 
of  the  bill :  It  was  determined,  that  the  money  so  received  might  be  recovered 
from  the  agents  by  the  indorsee,  as  so  much  money  had  and  received  to  his 
use. (A;) 

So,  where  goods  were  consigned  to  two  for  sale  by  commission  ;  but,  upon  a 
dissolution  of  partnership,  the  commission  to  sell  was  assumed  by  one  :  it  was 
holden,  that  he  who  sold  was  rightly  sued  for  the  amount  of  sales  in  an  action  of 
indebitatus  assumpsit  for  money  had  and  received  ;  which  form  of  action  could 
not  have  been  maintained  against  them  both  ;  although  they  might  have  been 
both  sued  jointly  in  an  action  for  not  accounting.(Z) 

A  share  in  the  London  Institution,  incorporated  by  charter,  for  the  advance- 
ment of  literature,  Sic.  cannot  be  transferred  until  the  proprietor  shall,  by  writ- 
ing under  his  hand,  signify  his  desire  so  to  do  to  the  committee  of  managers,  and 
mention  therein  the  name,  Sfc.  and  other  description  of  the  person  to  whom  he 
is  desirous  the  same  should  be  transferred,  which  person  is  to  be  approved  by 
the  committee :  a  note  was  *aceoidingly  addressed  to  them  in  these  words  : 
"  Having  disposed  of  my  share  in  the  London  Institution  to  (leaving  a  blank  for 
the  name,)  I  beg  leave  to  recommend  him  to  be  elected  in  my  place,  as  a  pro- 
prietor," &c.  and  signed  by  the  proprietor ;  which  note  was  left  in  the  hands 
of  an  agent,  (the  clerk  of  the  society,)  for  the  purpose  of  selling  the  share. 
It  was  holden,  that  this  did  not  authorise  such  agent  to  fill  up  the  blank  himself 
with  the  name  of  the  purchaser  with  whom  he  contracted  for  the  price,  against 


(h)  1  Carapb.  124.  (fc)   Lmgstm  v.  Ceniey,  4  Car.ipb.  176 

(!)  Vide  tit.  Principal  and  Agent,  Part  III.         (1)    }Vdh  v.  Ross,  7  Taunt.  403. 
post. 


*298 


298  On  Promises  To  Pay  Over  Money       [Part  11. 

the  rules  of  the  society,  which  require  the  recommendation  of  the  candidate  to 
be  vouched  by  the  proprietor  himself,  inserting  his  name,  &e.  in  the  paper  :  and 
consequently  the  agent  had  no  authority  before  the  transfer  was  so  completed, 
to  receive  the  money  of  the  purchaser,  and  to  insert  his  name  in  the  blank  un- 
known to  the  proprietor  ;  and  such  purchaser  having  paid  the  money  before  the 
time  of  payment  arrived,  viz.  when  the  transfer  from  the  proprietor  was  com- 
plete, pays  at  his  own  risk  to  the  agent,  whom  he  thereby  makes  his  own  for 
that  purpose.  And  such  agent  afterwards  absconding  with  the  money,  and  the 
society  disallowing  the  transfer  upon  the  interference  of  the  proprietor;  it  was 
determined,  that  the  purchaser  could  not  recover  the  amount,  from  such  proprie- 
tor, in  an  action  for  money  had  and  received,  (m) 

So,  a  book-keeper  in   Smithfield  market,  receiving   money   for   beasts  sold 
he  re,  is  liable  to  pay  such  money  to  the  owner  of  the  beasts,  and  cannot  apply 
it  in  payment  of  a  debt  due  to  him   from  the  salesman.     Thus,   in   the  case 
of  Goode  v.  Jones,(/>)  which  was  an  action  of  assumpsit  for  money  had  and  re- 
ceived.    The  plaintiff,  a  grazier  in  the  country,  had  sent  three  oxen  by  Cookei 
his  drover,   to  Smithfield  market  to  be   sold   by  a  salesman    there.     Holbeach, 
the  salesman,  employed   the  defendant   as   his  book-keeper,  and  he  was  also 
employed  by  several  other  salesmen.     On  the  evidence  it  appeared,  that  it  was 
the  business  of  the  book-keeper  to  receive   the  money  from  the  purchaser,  and 
keep  an  account  of  the  beasts  sold,  distinguishing  what  each  beast  was  sold  for, 
and  to  whom  it  belonged.     When  that  is  clone,  the  salesman  sends  an  order  to 
the  book-keeper,  desiring  him  to  pay  the  money  to  the  drover.     In  the  present 
case,  Holbeach,  the  salesman,  being  indebted  to  the  defendant,  he  refuses  to  pay 
the  money  received  for  the  plaintiff's  cattle  to  him,  insisting  that  he  had  a  right 
to  retain  the  money  received  by  him  on   that  account,   to  satisfy  the   debt  due 
to  him  from  Holbeach.     Holbeach  became  insolvent,    and  the  plaintiff  brought 
the  present  action.     It  was  contended  by  the  counsel  for  the  defendant,  that 
there  was  no  privity  between  the  plaintiff  and  the  defendant,   the  defendant  kept 
his  account   with  Holbeach   only,  and  the  plaintiff  could   only  call  on  him  for 
the  money.     This  is   much  like  the   case   of  a  banker:   if  a  sum  of  money  is 
#paid  into  his  hands  for  the  use  of  a  factor,  it   will  never  be  contended  that  the 
principal  may  maintain  an  action  against  him.     He  also  offered  to  call  witness- 
es to  prove  that  by  the  universal  custom  of  the   market,  the.  book-keeper  was 
considered  as  the  debtor  of  the  salesman,  and  not  of  the  grazier,  with  whom  he 
had  no  connexion.     But  Lord  Keinjon  Ch.  J.  said,  "  By  the  common  law  of  the 
land  the  plaintiff  is  entitled  to  receive  this   money  from   the  defendant,  and  no 
custom  whatever  can  deprive  him  of  it.     There  is  not  the  least   similitude   be- 
tween the  case  of  a  banker  and  the   present  defendant.     No  privity  whatever 
exists  between  the  banker  of  a  factor  and  the  principal,  whom  he  never  heard  of, 
but  this  defendant   knew  that  he  was   receiving  this  money  for  the  use  of  the 

(m)  Pamther  v.    Gailskill,    13  East  Rep.         (n)  Peake'a  Cas.  N.  P.   177. 
432. 


#•-» 


209 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.     299 

plaintiff;   he  entered  his   name   in  his  book,  and   distinguished   how  much  was 
due  to  him."     The  jury  found  a  verdict  for  the  plaintiff. 

If  money  be  paid  by  mistake  to  an  agent,  expressly  for  the  use  of  his  prin- 
cipal, and  the  agent  has  paid  it  over,  he  is  not  liable  in  an  action,  by  the  person 
who  mispaid  it;  because  it  is  just  that  one  man  should  not  be  a  loser  by  the 
mistake  of  another  ;  and  the  person  who  made  the  mistake  is  not  without  re- 
dress, but  has  his  remedy  over  against  the  principal.  On  the  other  hand  it  is 
just,  that  as  the  agent  ought  not  to  lose,  he  should  not  be  a  gainer  by  the  mis- 
take. And,  therefore,  if  after  the  payment  so  made  to  him,  and  before  he  has 
paid  the  money  over  to  his  principal,  the  person  corrects  the  mistake  ;  the  agent 
cannot  afterwards  pay  it  over  to  his  principal,  without  making  himself  liable 
to  the  real  owner  for  the  amount,  (o) 

If  an  agent  pays  money  of  his  principal  which  ought  not  to  be  paid,  it  may 
be  recovered  back  by  an  action  of  indebitatus  assumpsit,  either  at  the  suit  of 
the  agent  or  his  principal,  (p) 

So,  where  a  broker  having  a  lien  on  certain  policies  of  insurance  effected  for 
his  principal,  for  whom  he  had  given  his  acceptances,  the  defendant  promised 
that  he  would  provide  for  the  payment  of  those  acceptances  as  they  became 
due,  upon  the  plaintiff's  giving  up  to  him  such  policies,  in  order  that  he  might 
collect  for  the  principal  the  money  due  thereon  from  the  underwriters  ;  which 
was  accordingly  done,  and  the  money  was  afterwards  received  by  the  defend- 
ant: it  was  determined,  (q)  that  this  was  not  a  promise  for  the  debt  or  default 
of  another  within  the  statute  of  frauds  ;  and  that  the  plaintiff  might  recover 
against  the  defendant,  as  well  for  the  breach  of  agreement  in  not  providing  for 
the  payment  of  the  acceptances,  as  also  upon  a  count  for  money  had  and  re- 
ceived. 

So,  in  Cox  v.  Prentice, (r)  where  it  appeared,  that  the  plaintiffs  Avere  *gold 
refiners,  and  the  defendant  was  a  watchmaker,  and  had  a  correspondent  at  Gib- 
raltar, from  whom  he  was  in  the  habit  of  receiving  broken  metal.  His  correspon- 
dent remitted  to  him  a  bar  of  silver,  which  he  carried  to  the  plaintiff's  house  ; 
and  they  melted  it  down  in  his  presence.  The  plaintiffs  afterwards  procur- 
ed it  to  be  assayed  by  a  third  person,  who  was  paid  by  the  defendant ;  and 
the  plaintiffs  paid  to  the  defendant  88/.  and  a  fraction,  the  supposed  value  of 
the  silver,  according  to  the  assay-master's  certificate.  The  defendant  inform- 
ed his  correspondent  of  what  had  deen  done,  and  credited  him  in  his  account 
with  the  amount.  The  plaintiffs  sold  the  silver  to  a  house  in  Birmingham, 
who  afterwards  returned  it,  representing  that  it  did  not  answer  the  assay ;  upon 
which  the  plaintiffs  applied  to  the  defendant  for  a  return  of  the  money,  offer- 
ing to  return  him  the  silver;  but  the  defendant  refused  to  return  the  money,  on 
the  ground  that  lie  had  forwarded  his  account  to  his  correspondent,  in  which 
he  had  credited  him  with  the  full  sum.     It  appeared,  however,  that  the  account 

(o)    Buller  v.  Harrison,  Cowp.  566.  806.         (p)  Cowp.  806.  Doug.  637.  Bui.  N.  P.  35. 
See  also   Sadler  v.  Evans,  4  Bur.  1984.  :   and         (q)   Castling  v.  Axibert,  2  East  Rep.  325. 
see  Stra.  4-80.  and  3  Esp.  Rep.  233.  (r)  3  Maule  &  Sel.  344. 

*300 


►•c- 


300  On  Promises  to  Pay  Over  Money         [Part  II. 

was  still  unsettled  between  them.  The  assay-master  proved  that  he  received 
a  small  piece  of  the  silver  for  the  purpose  of  assaying  it  ;  and  he  by  his  assay 
made  the  whole  4  oz.,  whereas  2  oz.  7  pwts.  was  the  true  assay.  A  verdict 
was  found  for  the  plaintiffs  for  the  difference  in  value  between  the  supposed 
and  true  weight,  with  liberty  to  the  defendant  to  move  for  a  nonsuit.  A  rule 
nisi  was  accordingly  obtained  upon  two  grounds  ;  1st,  that  the  action  would 
not  lie,  even  supposing  it  to  have  been  brought  against  the  defendant's  principal ; 
2dly,  supposing  it  wonld  lie  against  his  principal,  yet  it  would  not  against 
the  defendant,  who  was  merely  an  agent,  and  whose  situation  had  been  altered 
between  the  time  of  the  sale  and  the  action,  by  his  having  accounted  for  the 
sale  money  with  his  principal.  But  the  Court  determined,  that  the  verdict  was 
rio-ht,  and  Le  Blanc  Just,  said,  "  The  circumstance  of  the  account  between  the 
defendant  and  his  principal  being  still  open  without  any  new  credit  given,  does, 
I  think,  dispose  of  the  objection  upon  the  2d  ground.  That  brings  it  to  the 
principal  question.  Now  upon  that,  as  a  general  proposition,  it  may  be  true, 
that  when  an  article  is  sold  which  turns  out  to  be  of  less  value  than  the  price 
given  for  it,  the  extra  price,  if  there  be  no  fraud,  cannot  be  recovered  back. 
But  that  is  a  rule  applicable  only  to  cases  where  the  thing  is  of  an  arbitrary 
value  ;  and  the  fallacy  lies  in  applying  the  rule  of  law  to  this  case  when  the 
thing  is  not  of  an  arbitrary  value,  but  depends  upon  the  quantity  of  silver  it 
contains.  It  is  just  like  the  case  of  a  purchase  of  any  commodity  by  weight, 
the  price  of  which  is  to  be  fixed  by  the  weighing ;  and  if  the  weight  turns  out 
to  be  less  than  that  paid  for,  can  there  be  a  doubt  that  the  party  selling  is  bound 
to  refund  ?  So  here  the  price  was  to  be  fixed  by  the  quantity  of  silver  to  be 
ascertained  by  the  assay  of  the  assay-master." 

*But  in  the  case  of  Tenant  v.  Mackintoshes)  where  it  appeared,  at  the  trial, 
that  the  plaintiff  had  sent  out  goods  to  be  sold  by  the  defendant  at  Calcutta, 
with  directions  to  remit  the  proceeds  either  in  specie,  or  in  a  return-cargo,  the 
nature  of  which,  and  the  prices  to  be  given  for  the  articles  were  particularly 
pointed  out  by  a  letter  of  instructions.  The  return-cargo  which  was  sent  did 
not  correspond  with  these  instructions,  but  the  plaintiff  did  not  repudiate  it  with- 
in a  reasonable  time.  That  question  was  left  to  the  jury.  It  appeared,  how- 
ever that  the  return-cargo  had  been  consigned  to  Messrs.  Blanchard  and  Wil- 
son, who  were  desired  to  sell  and  to  hold  the  proceeds  to  the  order  of  Mackin- 
tosh, the  latter  having  a  lien  upon  the  cargo  to  the  amount  of  about  4000/. 
Blanchard  and  Wilson  accordingly  sold  the  cargo,  and  paid  thereout  the  money 
due  to  the  defendant ;  the  residue,  amounting  to  415/.,  remained  in  their  hands, 
and  was  admitted  to  be  due  to  the  plaintiff.  A  verdict  having  been  found  for 
the  defendant  generally,  a  motion  was  afterwards  made  for  leave  to  enter  a  ver- 
dict for  the  plaintiff  for  the  sum  of  415/.  upon  the  count  for  money  had  and  re- 
ceived :  the  plaintiffs'  counsel  contended  that  the  cargo  having  been  consigned 
to  Blanchard  and    Wilson,  to  be   held  by  them  at  the  order  of  the  defendant, 

(s)  4  Barn.  &  Aid.  594. 
*301 


Chap.  4.]    Had  and  Received  to  the  Use  of  Mother*     301 

they  must  be  considered  as  his  agents,  and  then  the  money  in  their  hands  was,  in 
point  of  law,  money  had  and  received  by  Mackintosh,  to  the  use  of  the  plaintiff. 
But  the  Court  refused  the  motion,  and  said,  "  It  does  not  appear  from  the  cir- 
cumstances in  this  case,  that  Blanchard  and  Wilson  are  so  far  identified  with 
the  defendant,  as  that  the  money  in  their  hands  can  be  considered  as  money 
had  and  received  by  the  defendant.  They  are,  in  fact,  the  agents  of  both  par- 
ties :  of  the  defendant,  for  the  purpose  of  protecting  his  lien  upon  the  cargo  ; 
and  of  the  plaintiff  for  the  purpose  of  paying  over  the  remainder  of  the  proceeds 
after  the  defendant's  lien  has  been  satisfied.  There  is  therefore  no  ground  for 
entering  a  verdict  for  the  plaintiff  for  415/.,  his  remedy  for  that  being  against 
Blanchard  and    Wilson." 

7.  OF  TRUST  MONEY   RECEIVED;  AND  IN  WHAT  CASES  THE  SAMEJS 
RECOVERABLE  BY  ACTION  OF  ASSUMPSIT. 

An  action  of  indebitatus  assumpsit  for  money  had  and  received  will  not  lie 
to  recover  back  a  sum  paid  upon  trust,  for  a  specific  purpose,  unless  it  be  shewn 
that  the  trust  is  closed,  and  that  a  balance  remains  in  the  hands  of  the  trustee. 
Thus,  in  Case  v.  Roberts,  (t)  which  was  an  action  for  money  had  and  received, 
where  it  appeared  that  the  plaintiff  had  paid  50/.  into  the  hands  of  the  defendant, 
for  the  purpose  of  conducting  an  action  for  a  breach  of  promise  of  marriage, 
brought  by  a  relation  of  *the  plaintiff.  The  payment  of  the  money  was  proved, 
and  also  a  letter  of  the  defendant's,  in  which  he  gave  an  account  that  he  had 
expended  the  money  in  a  journey  to  Bristol  for  the  purposes  of  the  cause.  The 
plaintiff's  counsel  then  contended  that  the  defendant  ought  not  to  have  gone  to 
Bristol ;  that  it  was  not  necessary  for  the  action  ;  and  that  he  was  not  au- 
thorized to  go  there  :  the  defendant's  account  was  also  falsified  in  some  partic- 
ulars. For  the  defendant  it  was  insisted  that  the  present,  action  could  not  be 
maintained.  It  was  said,  if  money  is  advanced,  and  the  purpose  for  which  it  is 
advanced  fails,  an  action  lies  to  recover  it  back  :  but  this  was  in  substance  a 
trust :  an  action  of  account  might  lie,  or  the  plaintiff  might  go  into  a  court  of 
equity  ;  but  money  had  and  received  could  not  be  maintained.  The  defen- 
dant has  furnished  an  account,  and  discharged  himself  by  it ;  if  he  has  been 
guilty  of  a  breach  of  trust,  the  plaintiff  must  have  recourse  to  another  tribunal. 
Burrough  Just.,  before  whom  the  cause  was  tried,  said,  "  If  money  is  paid  into 
the  hands  of  a  trustee  for  a  specific  purpose,  it  cannot  be  recovered  in  an  action 
for  money  had  and  received  until  that  specific  purpose  is  shewn  to  be  at  an  end. 
The  action  for  money  had  and  received  must  not  be  turned  into  a  bill  in  equity 
for  the  purpose  of  discovery.  If  the  plaintiff  show  that  the  specific  purpose  has 
been  satisfied  ;  that  it  has  absorbed  a  certain  sum  only,  and  left  a  balance  ; 
such  balance  (the  trust  being  closed)  becomes  a  clear  and  liquidated  sum,  for 
which  an  action  will  lie  at  law.     Whilst  the  matter  remains  in  account,  and  is 


(0  Holt's  Ni.  Pri.  Cas.  500. 

*302 


802  On  Promises   To  Pay  Over  Money      [Part  II. 

charged  with  the  specific  trust,  the  action  for  money  had  and  received  will   not 

lie." 

But  where  the  trustees  under  a  marriage-settlement  of  stock,  the  dividends 
of  which  they  covenanted  to  permit  the  bankrupt  to  receive  for  his  life,  execut- 
ed after  his  bankruptcy,  a  power  of  attorney  to  A.  to  receive  the  same.  A.  re- 
ceived the  dividends,  and  paid  them  over  to  the  wife  of  the  bankrupt,  save  one 
sum,  which  he  paid  to  one  of  the  trustees  :  it  was  determined,  that  the  assignees 
might  recover  the  total  amount  of  such  dividends  from  the  trustees,  in  an  action 
for  money  had  and  received,  inasmuch  as  the  whole  of  the  money  had  been  vir- 
tually received  by  the  trustees  after  full  notice  of  the  bankruptcy,  (w) 

8.  OF  THE  PRODUCE  OF  AN  ADVENTURE  IN  THE  SOUTHERN  WHALE 
FISHERY  BETWEEN  THE  CAPTAIN  AND  HIS  CREW,  SOLD  BY  THE 
OWNER  AS  THEIR  AGENT  :  AND  OF  THE  SEAMEN'S  REMEDY  TO  RE- 
COVER THEIR  INDIVIDUAL  SHARES  BY  ACTION  FOR  MONEY  HAD 
AND  RECEIVED. 

In  the  case  of  Evans  v.  Bennett, (v)  which  was  an  action  of  indebitatus  as- 
sumpsit for  seamen's  wages,  and  for  money  had  received  and  *brought  for 
the  plaintiff's  proportional  share  of  and  adventure  in  the  southern  whale 
fishery,  in  a  ship  called  the  Mary  Skerhall ;  and  it  appeared  in  evidence,  that 
by  certain  articles  of  agreement,  under  seal,  between  the  captain  of  the  ship, 
and  the  plaintiff,  together  with  the  other  mariners,  it  was  agreed  that  they 
should  serve  faithfully  during  the  voyage  out  and  home  ;  that  if  any  of  them 
deserted,  they  should  forfeit  all  benefit  from  the  voyage  ;  that  the  cargo  should 
be  sold  six  weeks  after  the  ship  returned ;  or  if  not  sold,  should  be  valued, 
when  each  mariner  should  receive  that  proportion  of  the  net  proceeds  marked 
against  his  name  ;  that  the  defendant  as  owner  of  the  ship,  should  be  nominat- 
ed their  agent  to  dispose  of  the  cargo  for  the  benefit  of  all  parties  concerned  ; 
and  that  the  officers  and  seamen  should  receive  a  proportional  share  of  all 
prizes  taken  during  the  voyage.  For  the  defendant  it  was  objected,  that  the 
action  had  been  misconceived,  and  that  the  plaintiff  should  have  declared  special- 
ly on  this  agreement.  There  was  clearly  no  sum  of  money  due  as  wages  ;  for 
the  plaintiff,  according  to  the  usual  way  in  fishing  voyages  to  the  south  seas,  was 
to  receive  a  share  of  the  produce  of  the  cargo,  and  was  in  fact  a  partner  in  the 
adventure.  Nor  could  he  recover  this  share  as  money  had  and  received  to  his 
use ;  as  there  had  been  no  liquidation  of  accounts,  and  no  acknowledgment  of 
any  sum  being  due  to  him.  For  the  plaintiff  it  was  submitted,  that  he  was 
entitled  to  recover  under  the  count  for  money  had  and  received.  But  Mans- 
field Ch.  J.  said,  "  There  is  no  doubt  that  the  plaintiff  would  here  be  obliged  to 
prove  that  he  did  his  duty  on  board  the  ship  ;  but  the  count  for  money  had  and 
received  (to  which  alone  we  can  look,)  gives  no  hint  of  this,  and  affords  no 


(u)  Allen    v.  Impell,   8  Taunt.  263.    See     Impett. 
Holt's  Cas.  641.  S.  C,   but  where  defend-         (t>)   1  Campb.  300. 
ant's  name  is  stated  to  be  Imlett  instead  of 

*303 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.         SOS 

sort  of  information  as  to  the  nature  of  the  demand.  The  plaintiff  claims  a 
certain  proportion  of  the  proceeds  of  a  voyage,  in  consideration  of  having  done 
his  duty  as  a  mariner,  according  to  the  stipulations  of  an  agreement  entered 
into  between  him  and  the  captain  of  the  ship.  Ought  he  not  then  to  have  daclar- 
ed  upon  this  agreement  1  The  cargo  may  have  been  sold  by  the  defendant ; 
but  its  produce,  as  soon  as  received,  does  not  become  money  in  his  hands  ap- 
propriated to  the  use  of  the  mariners.  If  it  can  be  proved  that  he  has  admitted 
that  the  plaintiff  did  his  duty  properly  during  the  voyage,  and  that  he  is  entitled 
to  a  share  of  the  proceeds,  money  had  and  received  may  do  ;  otherwise  I  think 
there  should  have  been  a  special  declaration."  But  no  evidence  of  this  kind 
being  offered,  his  lordship  directed  a  nonsuit. 

*9.  OF  MONEY  RECEIVED  EITHER  UPON  THE  SALE  AND  PURCHASE  OF 
LANDS,  HOUSES,  FIXTURES,  GOODS,  CATTLE,  &c.  OR  IN  RESPECT  OF 
SOME  ACT  TO  BE  DONE,  OR  BENEFIT  TO  BE  DERIVED ;  OR  UPON  THE 
SALE  OF  ANNUITIES  :  WHERE  THE  CONTRACT  HAS  EITHER  BEEN  RE- 
SCINDED, DISAFFIRMED,  OR  NOT  PERFORMED,  AND  THE  CONSIDERA- 
TION HAS  FAILED.  IN  WHAT  CASES  THE  MONEY  SO  RECEIVED 
MAY  BE  RECOVERED  BACK  BY  ACTION  OF  INDEBITATUS  ASSUMPSIT. 

In  a  former  part  of  this  work(itf)  we  have  seen  that  a  contract  may  be  re- 
scinded or  put  an  end  to  by  the  mutual  agreement  of  the  contracting  parties ; 
and  that  it  may  be  disaffirmed  either  where  an  option  is  reserved  in  the  contract, 
or  where  the  contract  has  not  been  performed,  and  there  has  been  a  failure  of 
the  consideration.  But,  in  order  to  disaffirm  a  contract,  and  treat  it  as  deter- 
mined, hoth  parties  must  be  placed  in  the  same  situation  as  they  were  before 
the  contract  was  made. (a:)  Now  when  a  contract  has  been  thus  rescinded  or 
disaffirmed,  and  money  has  been  previously  paid  thereon  by  way  of  deposit, 
and  in  part  of  the  purchase  money,  either  to  the  vendor  himself,  or  to  his 
agent  or  auctioneer,  such  money  may  be  recovered  back  by  action  of  indebi- 
tatus assumpsit.  But  if  the  contract  cannot  be  rescinded  or  disaffirmed,  and  it 
continues  open  or  executory,  this  form  of  action  will  not  lie ;  the  proper  remedy 
being  either  by  special  action  of  assumpsit  upon  the  contract  for  the  money 
agreed  to  be  paid,  or  for  general  damages  ;  or  by  bill  in  equity  for  a  specific 
performance.(y)  These  distinctions  will  be  seen  throughout  the  cases  on 
this  subject,  which  I  now  propose  to  consider  under  the  following  subdivisions, 
namely,  first,  of  money  paid  by  way  of  deposit  upon  a  contract  for  the  sale 
of  lands,  houses,  &c.  ;  secondly,  of  money  paid  upon  the  sale  of  cattle,  goods, 
&c.  ;  thirdly,  of  money  paid  in  consideration  of  some  act  to  be  done  or  other 
benefit  to  be  received,  but  which  has  failed  ;  and  lastly,  of  money  received  on 
the  sale  of  annuities,  where  a  good  title  cannot  be  made,  or  where  the  deeds 
have  been  set  aside  or  put  an  end  to  by  agreement  or  otherwise. 


(to)  Part.  I.  c.  2.  s.  3.  8.  Cowp.  318.  2  Bur.  1010.  Sugden'a  Vendor 

(x)  Anto,  39.  and  Purchaser. 

(y)  Vido  1  Term  Rep.  135.  Doug.  23.  24.  n. 

38  #304 


S04  On  Promises  To  Pay  Over  Money     [Part  II. 

1.  Or  Monet  paid  by  way  of  Desposit  upon  a  Contract  for  the  Sale 
of  Lands,  Houses,  Fixtures,  &c.  which  has  been  rescinded  or  disaffirmed 
by  reason  of  some  Misdescription  or  the  Premises,  or  for  want  of 
making  out  a  valid  tltle,  or  refusing  to  execute  a  proper  convey- 
ANCE, &c] — If  a  contract  is  made  for  the  sale  of  lands  or  houses  either  by- 
public  or  private  contract,  and  a  deposit,  or  other  sum  of  money  is  paid 
thereon;  and  it  afterwards  'appears  that  any  material  misrepresentation  or 
improper  description  has  been  made  of  the  premises  either  by  the  vendor  him- 
self, or  by  his  agent  or  auctioneer  employed  to  sell,  the  vendee  may  disaffirm 
the  contract,  and  recover  back  the  money  so  paid  by  action  of  indebitatus  as- 
sumpsit. Thus,  in  the  ease  of  the  Duke  of  Norfolk  v.  Worthy, (z)  which  was 
an  action  of  indebitatus  assumpsit  for  money  had  and  received  to  recover 
back  a  deposit  upon  a  contract  for  the  sale  of  an  estate  which  was  advertised 
for  sale,  as  consisting  of  486  acres  of  land  situate  between  London  and  Brigh- 
ton, being  about  one  mile  from  Horsham,  four  from  Crawly,  &e.  And  among 
other  conditions  of  sale,  was  the  following  :  "  If  through  any  mistake  the  pre- 
mises should  be  improperly  described,  or  any  error  or  mis-statement  be  insert- 
ed in  this  particular,  such  error  shall  not  vitiate  the  sale  thereof,  but  the  vendor 
or  purchaser,  as  the  case  may  happen,  shall  pay  or  allow  a  proportionate  val- 
ue according  to  the  average  of  the  whole  purchase  money  as  a  compensation 
either  way."  The  sale  was  to  have  taken  place  by  auction  on  the  2 1st  of  De- 
cember ;  but  on  the  15th  of  the  samemonth,  a  written  agreement  was  entered 
into  between  /.  Richardson  on  the  behalf  of  the  defendant,  and  J.  Harting 
who  then  appeared  as  a  principal,  whereby  the  defendant  was  to  convey  the 
premises  to  Harting  on  or  before  the  20th  of  January  following,  for  1575/.  to 
be  paid  to  Richardson  on  the  execution  of  the  conveyance;  and  for  the  true 
performance  of  the  agreement,  Richardson  and  Harting  bound  themselves  to 
each  other  in  the  penalty  of  500/.  A  deposit  was  then  paid  by  Harting  to 
Richardson  of  300  guineas.  The  deposit  being  paid,  Harting  intimated  for 
the  first  time,  that  he  had  not  purchased  the  estate  for  himself,  but  for  the  Duke  of 
Norfolk.  Various  steps  were  afterwards  taken  for  carrying  the  agreement  into 
execution  ;  but  on  the  19th  of  January,  Harting  informed  Richardson,  that  the 
Duke  would  not  complete  the  purchase,  as  the  estate,  instead  of  being  only  one 
mile  from  Horsham,  was  between  three  and  four.  This  fact  being  now  clear- 
ly established,  the  plaintiff's  counsel  contended,  that  it  constituted  a  material 
variance  from  the  particular ;  so  that  the  contract  of  sale  was  vitiated,  and  the 
deposit  was  recoverable  as  money  had  and  received.  For  the  defendant  it  was 
objected,  that  the  action  ought  to  have  been  brought  in  the  name  of  Harting.  He 
alone  appeared  as  purchaser  on  the  face  of  the  agreement  and  until  after  it  had 
been  executed  and  the  deposit  paid,  the  Duke  of  Norfolk's  name  had  not  been 
mentioned.  Harting,  therefore,  was  to  be  considered  as  the  principal.  Against 
him  only,  and  not  against  the  Duke,  an  action  to  recover   the   penalty  would 


{x)  1  Campb.  337. 
'305 


Chap.  4.]    Had  and  Received  to  the  Use  of  Another.    305 

have  lain,  had  a  proper  conveyance  been  tendered  and  refused.  But  Lord  El* 
lenborough  Ch.  J.  said,  "  On  the  agreement,  Harting  only  may  be  liable  ;  but 
the  question  here  is,  whose  money  was  paid  as  a  deposit  ?  If  it  was  *the  money 
of  a  principal  paid  through  the  medium  of  an  agent,  it  may  be  recovered  back 
by  the  principal,  upon  the  contract,  under  which  it  was  paid,  being  rescinded. 
I  therefore  think  that  the  action  is  rightly  brought  in  the  name  of  the  present 
plaintiff."  It  was  theft  urged  on  the  part  of  the  defendant,  that  as  there  was  ev- 
idence of  only  a  part  of  the  deposit  being  paid  over  to  Worthy,  the  action  would 
not  lie  against  him,  but  ought  to  have  been  brought  against  Richardson.  And 
he  relied  upon  the  case  of  Burrough  v.  Skinner,  (ci)  where  it  was  held,  that 
the  auctioneer  is  liable  for  the  deposit  where  the  bidder  has  sufficient  rea- 
son not  to  proceed.  But  his  lordship  held,  that  if  proof  were  necessary  that 
the  money  had  been  paid  over  to  the  defendant,  the  evidence  given  would  be  in- 
sufficient. The  deposit  is  not  to  be  split  into  portions,  and  Richardson  would  still 
be  considered  as  the  depository.  But  it  seems  to  make  no  difference,  whether 
it  was  actually  paid  over  or  not.  Richardson  here  acted  completely  as  the 
agent  of  the  defendant.  Therefore,  when  the  deposit  was  lodged  with  the 
agent,  this  was  in  law  co  insta7ili  a  payment  to  the  principal."  The  defendant's 
counsel  then  addressed  himself  to  the  merits  of  the  cause,  and  insisted,  that 
^the  effect  of  the  misdescription  was  saved  by  the  condition,  which  provided  that 
no  error  or  mis-statement  should  vitiate  the  sale.  But  Lord  Ellenborough  said, 
"In  cases  of  this  sort,  he  should  always  require  an  ample  and  substantial 
performance  of  the  particulars  of  sale,  unless  they  were  specifically  qualified. 
Here  there  was  a  clause  inserted,  providing  that  an  error  in  the  description  of 
the  premises  should  not  vitiate  the  sale,  but  an  allowance  should  be  made  for  it. 
This  he  conceived  was  meant  to  guard  against  unintentional  errors ;  not  to 
compel  the  purchaser  to  complete  the  contract  if  he  had  been  designedly  mis- 
led. His  lordship  therefore  left  it  to  the  jury,  whether  this  was  merely  an  erro- 
neous mis-statement,  or  the  mis-description  was  wilfully  introduced  to  make 
the  land  appear  more  valuable  from  being  in  the  near  neighbourhood  of  a  bor- 
ough town.  In  the  former  case  the  contract  remained  in  force  ;  but  in  the  lat- 
ter case  the  plaintiff  was  to  be  relieved  from  it,  and  was  entitled  to  recover 
back  his  deposit."  And  the  plaintiff  obtained  a  verdict  accordingly.  The  de- 
fendant, however,  afterwards  moved  for  a  new  trial,  both  on  the  ground  that 
the  action  should  have  been  brought  in  the  name  of  Harting,  and  that  it  should 
have  been  brought  against  Richardson ;  but  the  Court  were  of  opinion,  that  the 
deposit  was  to  be  considered  the  money  of  the  Duke  of  Norfolk ;  and  that  be- 
ing paid  to  the  agent  of  the  defendant,  it  was  money  had  and  received  by  the 
latter  to  the  plaintiff's  use. 

A  contract  to  make  a  good  title,  means  a  title  good  both  at  law  and  in  equi- 
ty. This  was  determined  in  the  case  of  Mabcrley  v.  Robins,(b)  which  was  an 
action  for  money  had  and  received,  brought  to    recover  "back  the  deposit  pai 


(a)  Post.  308.  (h)  5  Taunt.  625. 

*30<5  *307 


807  On  Promises  To  Pay   Over  Money     [Fart  II. 

by  the  plaintiff  upon   the  purchase  of  a  house,  in  consequence  of  an  objection 
taken  to  the  title.     Lady  Fane,  the  proprietor,  devised  it   to    certain    trustees, 
in  trust  for    Lady  Read.     The  devisees   in    trust    conveyed  the  premises    for 
6690/.  to  Thomas  Read,  who  declared  a  trust  of  the  premises  for  Lady  Read, 
one  of  the  persons    equitably   entitled  under   the    will  of    Lady   Fane.       Tho- 
mas Read  was  willing  to  convey,  so  that  the  legal  estate  might  he   well  vested 
in  the  purchaser;  but   the    purchaser   insisted  on  the    concurrence  of  those  in 
whom  Lady   Read's  equitable    interest    had  since  vested,  and  who  were  now 
infants.     There  was  no  count  for    interest  of  money.     The  jury  found    a  ver- 
dict for  1800/.  the  deposit,  and  75/.  interest.     The  defendant  moved  the  Court 
to  enter  a  nonsuit,   urging,  that    though  the  objection   taken  to  the  title  might 
be  a  strong  one  in  a    court  of  equity,   yet,  that  inasmuch  as  it  was  only  an  eq- 
uitable objection,   the  plaintiff  must  resort  thither  to  avail  himself  of  it.     That 
this  Court  could  no  more  go    into  the  consideration   of  equitable   objections  to 
the  title  in  this  action,  than  they  could  on  the  trial  of  an   ejectment.     The  title 
is  confessedly    good   at  law :  the  Court  of  Chancery    interferes  on    the  very 
ground  that  a  title  is  good  at  law  ;  and  if  that  Court  sees  reason  to  grant  relief, 
it  decrees  a  re-conveyance.     The  Court,  however,    determined  that    the  plain- 
tiff had  a  right  to  recover  the  deposit,  but  without  interest.     And    Gibbs  Ch.  J. 
said,  "  It  has  been    determined,  that  if  parties  resort  to  a  court  of  law  for  their 
judgment  on  a  title  to  a  real  estate,  they  must  be  content   with  the  judgment  of* 
the  court  of  law ;  and  if  that  Court  says  the  title  is  good,  the  party  who  comes 
for  the   judgment  of  the   Court   shall  be    bound  by  it,    however   doubtful    the 
point ;  and  shall  not  afterwards  refuse  the  purchase  because  it  was   a  doubtful 
title :  but  the  doctrine  has  never  been  carried  to  the  extent  the  defendant  now 
contends  for.     Here  is  a  contract  to  make  out   a  good  title.     If    that   contract 
be  a  contract  to  make  a  good  title  both  in   law  and  in  equity,  and  the    contract 
is  brought  before   this  Court,   we  must  collaterally  look  to    see   whether   the 
title  be  good  in  equity  as  well  as  in  law.     It  is  true,  we  sit  here  only  as  a  Court 
of  law,  to  administer  the  legal  rights  which  arise  out  of  the  contract ;  but  one  of 
those  rights  is,  to  have   a  title  good  in    equity. (c)     See  to   what  a  length  the 
defendant's  doctrine  would  proceed!     If  a  deed    appeared    on    the    abstract, 
whereby  lands  were  conveyed  to  A.  and  his  heirs,  to  the  use  of  B.  and  his  heirs, 
in  trust  for  C.  and  his  heirs,  it  would  prove  that  a    good  title  at   law  was  made 
out  in  B.  and  his  heirs  to  convey,  without  ihe  concurrence  of  C' 

So,  if  an  estate  is  sold  by  auction,  and  the  vendor  does  not  shew  a  clear 
title  by  the  day  specified  in  the  conditions  of  sale,  the  purchaser  *may  recover 
back  his  deposit,  and  rescind  the  contract  without  waiting  to  see  whether  the 
vendor  may  ultimately  be  able  to  establish  a  good  title  or  not :  nor  is  a  pur- 
chaser bound  to  accept  a  doubtful  title.  And  where  it  was  an  objection  to  a 
title  that  it  was  doubtful  whether   the  wife  of  a    party  to  a  deed  thirty   years 

(c)  But  see  tho  case  of  Alpass  v.  Watkins,  back  if  the  vendor  has  a  good  legal  title, 
8  Term  Rep.  516.  where  it  was  determined,  and  that  the  court  will  only  take  notice  of 
that  the  deposit  money  cannot  be  recovered     the  legal  estate. 

#308 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.     SOS 

old  was  barred  by  that  deed  of  her  dower,  it  was  not  answerable,  by  proving 
at  the  trial,  that  she  was  then  dead  ;  such  proof  not  having  been  before  given. (d) 
It  is  a  sufficient  objection  to  a  title,  that  a  person  under  whom  the  vendors  claim, 
held,  during  his  seisin  of  the  estate,  a  newly-created  office  under  the  crown, 
(that  of  commissioners  of  Dutch  property,)  in  which  he  was  directed  by  statute 
to  pay  the  surplus  (after  certain  charges  answered)  cf  the  proceeds  of  certain 
sales  in  the  Bank  of  England,  there  to  remain  subject  to  such  orders  as  the 
king  in  council  should  give  thereon,  and  that  his  accounts  with  the  crown  were 
yet  unliquidated.  (*) 

So,  where  the  assignees  of  a  bankrupt  sell  an  estate  under  a  commission  of 
bankruptcy  which  is  not  valid,  for  which  reason  the  purchaser  disaffirms  the  con- 
tract, he  is  entitled  to  recover  back  his  deposit,  even  though  a  new  commis- 
sion is  afterwards  sued  out  under  which  a  good  title  may  be  made.  Thus,  in  the 
case  of  Bartlctt  v.  Tuchin  and  another, (c)  where  it  appeared  that  the  defen- 
dants, as  assignees  of  a  bankrupt,  had  contracted  for  the  sale  of  his  copyhold 
lands,  and  received  a  deposit.  The  commission  was  afterwards  superseded  ; 
and  another  commission  issued,  and  the  same  assignees  were  chosen  ;  but  the 
plaintiff  had  disaffirmed  his  contract  pending  the  old  commission  ;  it  was  held, 
that  he  was  entitled  to  recover  back  his  deposit,  though  under  the  last  commis- 
sion a  valid  title  might  have  been  made. 

So,  in  the  case  of  Burrough  v.  Skinner,(f)  which  was  an  action  of  inde- 
bitatus assumpsit  for  money  had  and  received  by  the  defendant,  who  was  an 
auctioneer  ;  and  in  that  character  he  had  sold  to  the  plaintiff  an  interest  in  land, 
for  which  the  plaintiff  had  paid  him  a  deposit  of  50/.,  but  upon  an  objection  to 
the  title,  and  the  want  of  disclosure  of  certain  circumstances,  which  ou^ht  to 
have  been  disclosed  at  the  time  of  the  bidding,  the  plaintiff  disaffirmed  the  con- 
tract and  brought  the  present  action.  And  the  Court  were  clearly  of  opinion, 
that  the  action  was  properly  brought  against  the  auctioneer:  They  said,  "  the 
money  does  not  appear  to  have  been  paid  over  by  him  to  his  principal  :  but  if 
it  had  been  so,  yet  the  objection  appears  to  have  been  made  before  it  either  was 
or  ought  to  have  been  so  paid  over.  He  was  a  stakeholder,  a  mere  depository 
of  the  50/.,  and  ought  not  to  have  parted  with  it  till  such  time  as  the  sale 
should  have  been  finished  and  completed  ;  and  it  should  appear,  in  the  event, 
to  whom  it  properly  belonged." 

It  has  also  been  ruled  by  Lord  Kenyon  Ch.  J.  that  where  the  auctioneer  *does 
not  disclose  the  name  of  his  principal  at  the  time  of  sale,  and  the  contract  is 
not  performed,  he  is  personally  liable  not  only  for  the  deposit,  but  also  for 
loss  of  interest,  and  for  damages  and  expenses,  (g)  So,  where  an  estate  is 
sold  by  auction,  and  in  the  printed  conditions  of  sale,  there  is  a  statement  and 
warranty  of  the  title,  the  premises  shall  be  taken  to  be  sold  under  such  title  ; 
and  no  verbal  declarations   of  the  auctioneer   at   the  time  of  the  sale  shall   be 


(d)   Wilde  v.  Fort,  4  Taunt.  334. 

(*)  Ibid. 

(<s)  6  Tatint.  258. 


(/)  5  Bur.  2639. 

(g)  Hanson     v.    Roberdeau,   Peake's   Cas. 
120.     Vide  12  Ves.  352.  484. 

*309 


309  On  Promises  To  Pay  Over  Money         [Part  II. 

admitted  to  contradict  the  printed  conditions.  Thus  in  the  case  of  Gunnis  and 
others  v.  Erhart.{h)  The  plaintiffs  were  trustees  for  the  sale  of  a  copyhold 
estate,  which  was  sold  by  auction.  In  the  printed  conditions  of  sale,  the  pre- 
mises were  stated  to  be  "free  from  all  incumbrances ;"  the  defendant  bid  for 
them,  and  they  were  knocked  down  to  him  ;  but  on  discovering  that  there  was 
a  charge  on  the  estate  of  17/.  per  annum,  he  refused  to  complete  the  purchase. 
At  the  trial,  the  counsel  for  the  plaintiffs  offered  to  give  in  evidence,  that  the 
actioneer  had  publicly  declared  in  the  auction  room,  when  the  estate  was  put 
up,  that  it  was  charged  in  the  manner  above  specified.  But  Lord  Loughbo- 
rough Ch.  J.  refused  to  admit  such  evidence  ;  and  the  plaintiffs  were  non- 
suited. And  upon  a  motion  to  set  aside  this  nonsuit,  the  Court  of  Common 
Pleas  were  clearly  of  opinion,  that  the  evidence  was  admissible,  as  it  would 
open  a  door  to  fraud  and  inconvenience,  if  an  auctioneer  were  permitted  to 
make  verbal  declarations  in  the  auction  room  contrary  to  the  printed  conditions 
of  sale  ;  and  no  proof  was  offered  that  the  defendant  had  any  particular  per- 
sonal information  given  him  of  the  incumbrance  in  question. 

So,  in  the  case  of  Edwards  v.  Hodding,(i) where  an  attorney  who  was  al- 
so an  auctioneer,  received  a  deposit  on  property  which  he  had  sold  by  auction  ; 
and  after  queries  raised  on  the  title,  and  before  they  were  cleared,  paid  over 
the  deposit  to  his  principal.  On  a  demand  of  the  deposit  by  the  vendee,  he 
answered  that  his  principals  would  not  consent  to  return  it,  and  would  enforce 
the  contract.  The  Court  held,  that  the  buyer  might  recover  the  deposit  from 
the  auctioneer  as  money  had  and  received  to  the  plaintiff's  use.  And  Chambre 
Just,  said,  "  This  is  not  an  absolute  payment  by  the  plaintiff  to  the  defendant 
as  the  vendor's  agent,  but  a  conditional  payment ;  or,  as  it  is  more  properly 
called,  a  deposit.  The  defendant  receives  it,  knowing  the  condition,  that 
there  should  be  a  good  title ;  and  he  knows  that  that  condition  is  not  performed, 
he  nevertheless  takes  on  himself,  with  this  knowledge,  to  pay  over  the  money, 
which  he  was  not  warranted  in  doing  ;  and  therefore  the  judgment  must  be  for 
the  plaintiff." 

An  auctioneer  is  not  liable  to  pay  interest  upon  a  deposit  kept  in  his  *hands 
during  the  investigation  of  a  title  ;  for  he  is  to  be  considered  as  a  mere  3gent, 
unless  he  specially  engage  as  a  principal  in  the  sale.  Thus,  in  the  case  of 
Lee  v.  Munn,{k)  where  it  appeared,  that  the  plaintiffs  had  purchased  property 
at  a  sale,  conducted  by  the  defendant  as  an  auctioneer.  The  plaintiffs  were 
the  highest  bidders,  and  the  lot  was  declared  to  be  theirs  ;  and  they  signed  an 
agreement  to  complete  the  purchase,  according  to  the  conditions  of  sale. 
They  likewise  paid  into  the  hands  of  the  defendant  200L  as  a  deposit,  and  a 
security  for  their  performance  of  the  contract.  Objections  being  taken  to  the 
title  deeds,  a  long  negotiation  commenced  between  the  vendor  and  vendee  ;  and 
from  the  year  1813,  when  the  property  was  first  put  to  auction,  until  the  year 
1817.,  different  treaties  had  been  carried  on  and  arrangements  proposed.     Fi- 

(h)  1  H.  Bl.  289.  (fc)  Holt.  N.  P.  Cas.  569.    8  Taunt.  4*. 

(t)  5  Taunt.  815.  S.  C. 

♦310 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another-    810 

nally,  however,  the  contract  was  rescinded  ;  and  the  plaintiffs  now  brought  an 
action  against  the  defendant  to  recover  the  amount  of  the  deposit  money,  to- 
gether with  interest  from  the  time  of  its  having  been  paid  into  the  hands  of  the 
auctioneer,  and  the  expenses  which  the  plaintiffs  had  been  obliged  to  incur  in 
investigating  the  title  to  the  property.  The  defendant  had  paid  the  amount  of 
the  deposit  into  court.  For  the  plaintiffs  it  was  contended,  that  they  had  not 
only  a  right  to  recover  the  interest  of  the  money,  but  the  expenses  of  investi- 
gating the  title.  Interest  was  due  in  all  cases  where  the  sum  sought  to  be  re- 
covered was  liquidated,  and  was  detained  in  the  hands  of  the  receiver  beyond 
the  period  when  it  ought  to,  have  been  paid.  At  least  it  was  competent  for  a 
jury  to  calculate  interest  in  the  amount  of  damages.  But  Gibbs  Ch.  J.  said, 
"  I  cannot  think  that  an  auctioneer,  who  does  not  mix  himself  as  a  principal  in 
the  transaction,  but  merely  receives  a  deposit  to  hold  upon  the  condition,  that 
in  case  the  purchase  be  completed,  he  shall  pay  such  deposit  to  the  vendor, 
and  if  it  be  not  completed,  he  shall  return  it  to  the  vendee,  is  to  be  charged 
with  interest.  I  know  of  no  case  to  this  effect ;  and  I  am  sure  the  practice  is 
the  other  way.  As  to  the  expenses  of  investigating  the  title,  they  are  foreign 
to  the  case.  The  auctioneer  is  not  liable  to  pay  them.  But  the  question  of 
interest  being  new,  I  will  reserve  it  for  the  opinion  of  the  Court."  The  ques- 
tion was  accordingly  brought  before  the  Court ;  and  after  argument,  they  de- 
clared that  the  plaintiff  was  not  entitled  to  interest. 

And  in  the  case  of  Flurcau  v.  Thornhill,{l)  where  the  defendant,  the  vendor, 
in  an  action  of  indebitatus  assumpsit  for  money  had  and  received  paid  into 
court  the  deposit  money,  with  interest :  the  Court  of  Common  Pleas  determin- 
ed that  the  plaintiff,  the  vendee,  could  not  recover  any  damages  for  the  loss  of 
his  bargain.  Therefore,  where  the  vendee  has  been  put  to  expense,  and  has 
•iicurred  any  particular  loss  or  damage  in  consequence  of  the  vendor's  not  mak- 
ing a  good  title,  such  expense  and  *damage  may  be  recovered  against  the  ven- 
dor by  action  of  assumpsit,  stating  the  contract,  the  breach,  and  the  damages, 
&c.  specially. (m) 

Where  a  purchase  is  made  which  consists  of  several  lots  of  houses,  if,  from 
the  nature  of  the  contract,  it  be  entire,  the  vendor  must  make  a  complete  title  to 
the  whole,  otherwise  the  vendee  may  rescind  the  contract,  and  recover  back 
his  deposit  by  action  of  indebitatus  assumpsit  for  money  had  and  received. 
Thus,  in  the  case  of  Chamber  v.  Griffiths  and  others, (n)  which  was  an  action 
of  indebitatus  asswnpsit  for  money  had  and  received  brought  to  recover  back  the 
amount  of  a  deposit  made  by  the  plaintiff  on  a  sale  by  auction  of  several  houses 
of  the  defendant's.  And  the  case  in  evidence  was,  that  the  houses  in  question 
had,  with  several  others,  been  put  up  by  public  auction  in  distinct  lots;  the 
plaintiff  had  bid  for  three  of  these  lots,  which  had  been  knocked  down  to 
him ;  and  he  had  paid  the  deposit  for  them  required  by  the  conditions  of  sale. 


(I)  2  Bl.  Rep.  1078.  268.  Camfield  v.  Gilbert,  4  Esp.  Rep.  223. 

(to)  VkU  Richards  v.  Barto*,  1  Esp.  Rep.         (n)  1  Esp.  Rep.  150. 


* 


811 


311         On  Promises  To  Pay  Over  Money  [Part  II. 

One  of  the  conditions  was,  that  the  purchaser  was  to  have  a  good   title  made 
to  him  within  a  month  after  the   sale.     Within  the  month  the  defendant  sent 
an  abstract  of  the  title,  but  it  was  to  one  of  the  houses  only.     The  plaintiff  in- 
sisted upon  having  a  title  made  to  him  for  the  other  two  houses,  or  of  lescind- 
ing  the  agreement  for  the  whole  purchase.     The  defendants   were  willing  to 
suffer  the  plaintiff  to  abandon   his  purchase  of  the  two   houses  to  which  they 
had  not  sent  an  abstract,  but  insisted  on  holding  him  to  his  agreement  for  the 
house  to  which  they  had  shown  a  good  and   sufficient   title.     The  plaintiff  re- 
fused these   terms,  and  brought  his  action  to  recover  back  the  whole  of  the  de- 
posit money.     The  defendants  had  paid  into  court  the  amount  of  the  deposit 
paid  to  them  for  the  two   houses.     The  question  therefore  was,  whether   the 
plaintiff  had  a  right  to  consider  the  contract  as  at  an  end,  or  to  recover  his  de- 
posit for    the  house   to  which   the  defendants    had    made   a  title,   the   defen- 
dants having  failed  in  making  any  title  to  the  others.     Lord  Kent/on  Ch.  J.  said, 
"  When  a  party  purchases  several  lots  of  this  description,  at  an  auction,  it  must 
be  taken  as  an  entire  contract ;  that  is,  that  the  several  lots  are  purchased  with 
a  view  of  making  them  a  joint  concern.     The  seller,  therefore,  shall  not  in  case 
of  anv  defect  of  his   title  to  one   part,   be  allowed  to  abandon  that  part  at  his 
pleasure,  and  to  hold  the  purchaser  to  his  bargain  for  the  residue.     From  such 
a  doctrine  much  injustice  might  result,  as  the  part  to  which  the  seller  could  not 
make  a  title  might  be  so  circumstanced   that,  without  it,  the  other  parts  would 
be  of  little,  or  perhaps  of  no  value ;  or   it  might  leave  it  in  the  power  of  the 
seller,   or  any  other    person    who  might  come  to  the  possession  of  such  part, 
to  deprive   the   purchaser  of  every  degree    of   *enjoyment  or  beneficial  use 
of  that  part  which  he  had  purchased :"  and  his  lordship  added,  "  That  a  case 
under  circumstances  precisely  similar  to  the  present,  had  been   decided  before 
him,  when  he  was  master  of  the  rolls  ;  that,  on  that  case  coming  before  him,  he 
had  found  that  his  predecessor  there,  Sir  Thomas  Sewell,  had  ruled  contrary  to 
the  doctrine  he  was  now  delivering,  but  that  he  at  the  rolls  had   over-ruled  Sir 
Thomas  SeweWs  determination  with  the  general  approbation  of  the    bar.     In 
the  present  case,  therefore,  as  the   defendant  had  failed  in   making  any  title  to 
the  two  lots  in  question,   the  plaintiff  had  by  law  a  right  to  rescind   the  agree- 
ment as  to  the  whole,  and,  of  course,  to  recover  his  deposit.'' 

But  in  the  case  of  Joseph  Johnson  v.  John  Johnson,  {o)  where  trustees  under  a 
will  sold  to  the  plaintiff,  (he  being  one  of  the  trustees,  and  also  one  of  several 
legatees,)  two  parcels  of  land,  by  private  contract,  for  two  distinct  sums  of  mon~ 
ey,  with  the  consent,  and  by  the  express  agreement  of  all  the  legatees,  who  were 
respectively  entitled  to  equal  shares  of  the  purchase  money,  and  which  were  du- 
ly paid  to  them  :  but  after  the  contract  had  been  thus  far  carried  into  execution, 
and  after  the  purchaser  was  in  possession  of  the  land,  it  was  discovered  that 
there  was  some  defect  of  title  to  one  of  the  parcels,  and,  in  consequence  of  which, 
an  ejectment  was  brought  by  the  person  claiming  title,  and  he  recovered ;  and 
the  plaintiff,  who  had  paid  the  purchase  money,  but   to  whom  no   conveyance 


(o)  3  Bos.  &  Pul.  162. 
>312 


Chap.  4.]    Had  and  Received  to  the  Use  of  Another.     312 

haJ  been  made,  was  not  only  evicted  from  the  possession,  but  was  obliged  to 
refund  the  rent  and  profits  of  that  particular  parcel  of  land.  Several  of  the 
persons  interested  consented  to  repay  their  proportions  of  the  purchase  money  ; 
but  some  (among  whom  was  the  present  defendant)  refused  ;  and  the  question 
was,  whether,  under  these  circumstances,  the  plaintiff  was  entitled  to  recover 
his  proportion  in  an  action  of  indebitatus  assumpsit  for  money  had  and  received, 
and  retain  possession  of  the  other  piece  of  land  ?  The  Court  of  Common  Pleas 
were  of  opinion  that  the  plaintiff  was  entitled  to  recover  against  the  defendant 
his  proportion  of  the  purchase  money  in  this  form  of  action,  and  also  to  retain 
possession  of  the  other  piece  of  land  :  and  Lord  Alvanley  Ch.  J.,  in  delivering 
the  opinion  of  the  Court,  said,  "  If  the  question  were,  how  far  the  particular 
part  of  which  the  title  has  failed  formed  an  essential  ingredient  of  the  bargain* 
the  grossest  injustice  would  ensue  if  a  party  were  suffered  in  a  court  of  law  to 
say  that  he  would  retain  all  of  which  the  title  was  good,  and  recover  a  pro- 
portionable part  of  the  purchase  money  for  the  rest.  Possibly  the  part  which 
he  retains  might  not  have  been  sold  unless  the  other  part  had  been  taken  at  the 
same  time,  and  ought  not  to  be  valued  in  proportion  to  its  extent,  but  according 
to  the  various  circumstances  connected  with  it.  But  a  court  of  equity  may 
inquire  into  all  the  circumstances,  and  may  ascertain  how  far  one  part  *of  the 
bargain  formed  a  material  ground  for  the  rest,  and  may  award  a  compensation, 
according:  to  the  real  state  of  the  transaction.  In  this  case,  however,  no  such 
question  arises  :  for  it  appears  to  me  that,  although  both  pieces  of  ground  were 
bargained  for  at  the  same  time,  we  must  consider  the  bargain  as  consisting  ot 
two  distinct  contracts;  and  that  the  one  part  was  sold  for  300Z.  and  the  other 
for  700Z.  It  has  not  been  suggested  that  they  were  necessary  to  the  occupa- 
tion of  each  other.  It  amounts  therefore  to  no  more  than  this  ;  that  the  plain- 
tiff being  one  of  the  executors,  who  were  about  to  sell  the  house,  and  also  to 
sell  the  land,  to  both  of  which  the  legatees  undertook  to  make  a  good  title,  ad- 
vanced his  money  to  the  legatees  on  the  purchase  of  these  two  lots,  and  now  seeks 
to  recover  back  the  money  for  one  of  them,  because  the  title  to  that  has  proved  de- 
fective. In  the  present  case,  the  plaintiff  never  has  had  any  title  conveyed  to  him  ; 
and  therefore  we  are  of  opinion,  notwithstanding  the  party  sued  is  a  legatee,  that 
the  plaintiff  has  paid  his  money  under  a  mistake  ;  consequently,  the  rule  adopted 
in  courts  of  law  in  such  cases  applies  to  him,  and  entitles  him  to  recover  that 
money  from  the  party  to  whom  it  has  been  paid,  in  an  action  for  money  had 
and  received." 

If,  however,  there  be  but  one  contract,  it  cannot  be  rescinded  by  one  of  the 
parties  for  the  default  of  the  other,  unless  both  of  them  can  be  put  in  statu  quo 
as  before  the  contract.  Thus,  in  the  case  of  Hunt  v.  Silk,{p)  which  was  an 
action  of  indebitatus  assumpsit  for  money  had  and  received.  The  facts  were 
these: — On  the  31st  August,  1802,  an  agreement  of  that  date  was  made  be- 
tween the  parties,   whereby  the   defendant,  in  consideration  of  10/.  to  be  paid 

(p)  5  East  Rep.  449. 
39  *313 


313  Chi  Promises   To  Pay  Over  Money       [Part  II. 

at  the  time  of  executing  the  lease  after  mentioned,  and  for  other  considerations 
therein  stated,   agreed  that,   within  ten  days  from  the  date  thereof,  he   would 
grant  to  the  plaintiff  a  lease  of  a  certain  dwelling-house,  for  nineteen  years 
(determinable  by  the  plaintiff  in  five,  ten,  or  fifteen  years),  from  the  29th  of 
September  then  next  (but  possession  to  be  immediately  given  to  the  plaintiff,) 
at  the  yearly  rent  of  03/.     And  the  defendant  also  agreed,  at  his  own  expense, 
to  make  certain  alterations  in  the  premises,  and  that  the  premises,  fixtures,  and 
things  should,  at  the  time  of  executing  the  lease,  be  put  in  complete  repair  : 
and  the  plaintiff,  in  consideration  thereof,  agreed  to  accept  the  lease  at  the  rent, 
and  in  the  manner  aforesaid,  and  to  execute  a  counterpart,   and  pay  the  rent. 
The  plaintiff  took  immediate  possession  of  the  premises  under  the  agreement, 
arid  paid  the  10/.  at  the  same  time,  in  confidence  that  the  alterations  and  repairs 
stipulated  for  would    be  done    within   the   ten    days ;  but   that  period  having 
elapsed,  and  nothing  being  done,  notwithstanding  several  applications  to  the 
defendant  to  perform  the  work,  the  plaintiff  quitted  the  house,  giving  the  defen- 
dant *notice  of  his  having  rescinded  the  agreement  in  consequence  of  the  de- 
fendant's default,  and  brought  this  action  to  recover  back  the  money  he  had  paid. 
But  the  Court  of  King's  Bench  were  of  opinion,  that  the   plaintiff  could   not, 
under  the  circumstances  of  this  case,  rescind  the  contract  and  declare  in  this 
general  form  of  action.     And  Lord  EUenborough  Ch.  J.  said,  "  Without  ques- 
tioning the  authority  of  the  case  of  Giles  v.   Edward,(q)  (which  was   cited  by 
the  counsel  for  the  plaintiff)   which  I  admit  to   have  been   properly  decided, 
there  is  this  difference  between  that  and  the  present ;  that  there,  by  the  terms 
of  the  agreement,    the  money  was  to  be  paid  antecedent  to  the  cording  and 
delivery  of  the  wood ;  and  here  it  was  not  to  be  paid  till  the  repairs   were 
done,  and  the  lease  executed.     The  plaintiff  there  had  no  opportunity,  by  the 
terms  of  the  contract,  of  making  his  stand,  to  see  whether  the   agreement  were 
performed    by  the  other  party  before  he  paid    his  money,   which  the  plaintiff 
in  this  case  had :  but  instead  of  making  his  stand,  as  he  might  have  done,  on 
the  defendant's  non-performance  of  what  he   had  undertaken  to  do,  he  waved 
his  right,  and  voluntarily  paid  the  money,  giving   the  defendant  credit   for  his 
future  performance   of  the  contract,   and  afterwards  continued  in   possession, 
notwithstanding     the   defendant's   default.     Now  where   a    contract  is  to  be 
rescinded  at  all,  it  must  be  rescinded  in  loto,  and  the  parties  put  in  statu  quo. 
But  here  was  an  intermediate  occupation,  a  part  execution   of  the  agreement, 
which  was  incapable  of  being  rescinded.     If  the  plaintiff  might  occupy  the  pre- 
mises two  days  beyond  the  time  when  the  repairs  were  to  have  been  done,  and 
the  lease  executed,  and  yet  rescind  the  contract,  why  might  not  he  rescind  it 
after  a  twelvemonth  on   the   same  account  ?     This   objection   cannot  be  gotten 
rid  of:  the  parties  cannot  be  put  in  statu  quo.'''' 

Where  money  is  paid  by  way  of  deposit  on  a  contract  for  the  sale  of  lease- 
hold premises  ;  and,  upon  examining  the  vendor's  title,  it  should  appear  that  he 


(q)  Vide  post.  323. 
'314 


Chap.  4.]     Had  and  Received  to  iha   Use  of  Another.  314 

has  a  less  term  of  years  to  come  than  what  is  mentioned  in  the  agreement,  or 
his  title  be  otherwise  defective,  the  purchaser  may  consider  the  contract  at  an 
end,  and  bring  an  action  for  money  had  and  received,  to  recover  back  his  de- 
posit. Thus,  in  the  case  of  Farrer  v.  Nightingal,{r)  which  was  an  action  of 
indebitatus  assumpsit  for  money  had  and  received.  The  facts  are  reported  as 
follow: — "The  defendant  being  possessed  of  a  public  house,  the  plaintiff  en- 
tered into  a  treaty  with  him  for  the  sale  of  his  interest ;  and  a  written  agree, 
ment  was  accordingly  entered  into  between  the  plaintiff  and  the  defendant, 
which  recited  that  the  defendant  was  possessed  of  an  interest  in  a  public-house 
of  which  eight  years  and  a  half  were  to  come ;  and  that  the  plaintiff  had  contracted 
and  agreed  for  the  purchase  of  the  interest  and  good  will  of  the  same,  for  a  certain 
sum  of  money  therein  mentioned.  Tbe  plaintiff  paid  *a  deposit  of  5/.  to  the 
defendant,  on  signing  the  agreement ;  but  afterwards,  upon  looking  into  the  de- 
fendant's title,  it  appeared  that  he  had  an  interest  to  come  in  the  premises  of 
but  six  years  only,  and  not  of  eight  years  and  a  half,  as  stated  in  the  agree- 
ment ;  upon  Which  the  plaintiff  refused  to  accept  the  assignment,  and  brought 
the  present  action  to  recover  the  deposit  money."  And  for  the  defendant  it  was 
objected,  that  as  there  had  been  a  written  agreement  between  the  parties,  the 
plaintiffs  should  have  declared  on  it,  and  should  not  be  permitted,  in  this  action, 
to  go  into  parol  evidence  of  the  matters  contained  in  it ;  which  matters  were 
necessary  to  the  support  of  the  plaintiff's  action.  But  Lord  Kenyon  Ch.  J. 
said,  "  I  have  often  ruled,  that  where  a  person  sells  an  interest,  and  it  appears 
that  the  interest  which  he  pretended  to  sell  was  not  the  true-  one ;  as,  for  exam- 
ple, if  it  was  for  a  less  number  of  years  than  he  had  contracted  for  to  sell,  the 
buyer  may  consider  the  contract  as  at  an  end,  and  bring  an  action  for  money 
had  and  received  to  recover  back  any  sum  of  money  he  may  have  paid  in  part 
performance  of  the  agreement  for  the  sale  ;  and  though  it  is  said  here  that, 
upon  the  mistake  being  discovered  in  the  number  of  years  of  which  the  defen- 
dant  stated  himself  to  be  possessed,  he  offered  to  make  an  allowance  pro  tanto, 
that  makes  no  difference  in  the  case  ;  it  is  sufficient  for  the  plaintiff  to  say,  that 
is  not  the  interest  which  I  agreed  to  purchase.  The  plaintiff's  action  is  well 
brought." 

So,  in  Adams  v.  Fairbaim,(s)  which  was  an  action  brought  to  recover  a  de- 
posit of  39/.  paid  by  the  plaintiff  upon  the  purchase  of  a  lease  of  a  public-house 
which  was  put  up  to  sale  by  a  public  auction.  The  plaintiff  declared  on  a 
special  agreement,  and  also  for  money  had  and  received.  Upon  the  production 
of  the  supposed  agreement,  it  appeared  to  be  unstamped ;  but  it  had  not  been 
signed  by  either  of  the  parties,  or  by  the  auctioneer  as  their  agent.  Abbott 
Just.,  before  whom  the  cause  was  tried,  was  of  opinion,  that  the  plaintiff  might 
still  be  entitled  to  recover  on  the  count  for  money  had  and  received.  It  after- 
wards appeared,  that  in  order  to  complete  the  title,  it  was  necessary  to  procure 
the  execution  of  an  assignment  of  the  lease  by  one  Allen ;  and  that  the  lease  it- 


(r)  2  Esp.  Rep.  639.  (s)  2  Staik.  277. 

*315 


315  On  Promises  To  Pay  Over  Money      [Part  II. 

self  was  in  the  hands  of  the  brewer,  who  had  supplied  the  former  tenant  with 
beer,  and  who  had  a  lien  upon  it  for  the  amount  of  his  debt.     The  learned 
judge  intimated  that  it  was  incumbent  on  the  defendant  to  show  that  an  asign- 
ment  of  the  lease,  executed  by  Allen,  had  been  tendered  to  the  plaintiff  when 
he  demanded  his  money.     The  counsel  for  the  defendant  submitted,  that  since 
the  money  had   been  paid  on  the  ground  of  a   contract  between  the  parties,  it 
could  not  be  recovered   whilst  the  contract  was  in  force,  and  until  default  made 
by  the  defendant :  he  was   ready  to  prove  that  the  parties   were  on  the   spot 
ready  to  assign  the  *lease,  on  the  payment  of  the  remainder  of  the  purchase 
money  by  the  plaintiff;   and  he  contended  that  the  payment  of  the  money,  and 
the  assignment  of  the  lease  were  concurrent  acts,  and  that  neither  of  the   par- 
ties was  bound  to  execute  his    act  the  first ;  it  was  sufficient  if  each  of  them 
was    ready  to  perform   his  own  part  of  the  engagement.     It   appeared  in  evi- 
dence, that  the  parties  had  met  in  order  finally  to  conclude   the  business,   and 
that     the  plaintiff's   attorney  attended  to  pay    the  remainder  of   the   purchase 
money  :    it  also  appeared  that  Allen,  at  the  request  of  Fairbairn,  had  attended 
in  town  for  the  purpose  of  executing  the  assignment,  but  that  in  fact  no  assign- 
ment had  been   eidier   tendered  or  executed.     His  Lordship,  however,  was  of 
opinion,  that  it  was    incumbent  on  the  defendant  to  prove,  that  an  assignment 
had  been  executed.     He  said  there  was  no  contract  between  the  parties  in  evi- 
dence, since   the   statute    of  frauds   required  that  such  a  contract  should  be  in 
writing,  and  since  no  assignment    appeared  to  have  been  tendered,  the  jury 
were  directed  to  find  a  verdict  for  the  plaintiff,  which   they  accordingly  did  for 
the  amount  of  the  deposit." 

So,  in  the  case  of  Elliott  v.  Edwards, (t)  where  a  leasehold  estate  Avas  put 
up  to  sale  by  public  auction,  and  the  plaintiff  became  the  purchaser,  and  paid 
a  deposit  of  20Z.  per  cent,  in  part  of  the  purchase  money,  and  signed  an  agree, 
ment  for  payment  of  the  remainder  on  or  before  the  2d  of  February,  1802,  on 
having  a  good  title,  when  possession  would  be  given.  But  upon  investigating 
the  title,  it  appeared,  that  the  assignee  of  the  lessee  had  not  paid  the  whole  of 
the  purchase  money  for  the  assignment ;  and  that  there  was  a  proviso  in  the  as- 
signment, not  to  assign  without  licence  of  the  lessee,  the  purchaser  therefore 
refused  to  complete  the  purchase,  and  brought  this  action  to  recover  the  deposit. 
And  the  Court  of  Common  Pleas  held,  that  the  non-payment  of  the  purchase 
money  by  Johnes  was  a  sufficient  objection  to  the  title,  and  that  the  plaintiff 
might  recover  back  his  deposit  in  this  form  of  action. 

It  is  a  general  rule,  that  in  an  action  for  money  had  and  received,  to  recov- 
er back  a  deposit  made  upon  a  sale,  on  the  ground  of  a  defect  of  title,  the  par- 
ty bringing  the  action  must  prove  the  title  bad,  and  it  will  not  be  sufficient  to 
show,  that  the  title  has  been  deemed  insufficient  by  conveyancers,  who  have 
been  employed  to  advise  upon  it.  This  was  settled,  in  the  case  of  Camfield  v. 
Gilbert,{u)   which  was  an   action  of  assumpsit   for  money   had   and  receivedi 


(t)  3  Bo?.  &  Ful.  131.  (u)  4  Esp.  Rep.  221.  3  East  Rep.  516.  S.  C. 

*316 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.     316 

brought  to  recover  the  sum  of  50/.  which  was  the  deposit  paid  by  the  plaintiff, 
on  the  purchase  of  an  estate  in  Kent,  contracted  to  be  sold  by  the  defendant  to 
the  plaintiff;  the  plaintiff  contending  that  the  title  was  bad  ;  and  that  he  was 
entitled  to  recover  his  deposit.  At  the  trial,  before  Lord  Ellcnboroitgh  Ch.  J., 
the  counsel  for  the  plaintiff,  after  having  stated  that  opinions  of  different  '"con- 
veyancers had  been  given  on  the  title  before  the  completing  of  the  purchase, 
who  were  of  opinion  that  the  title  was  defective,  and  ought  not  to  be  taken  by 
the  plaintiff,  asked  his  lordship  whether  it  might  not  be  sufficient  for  him  to  re- 
ly on  the  fact  of  such  conveyancers,  advising  the  party  not  to  complete  the 
purchase  1  or  whether  it  was  necessary  for  him,  on  the  part  of  the  plaintiff,  to 
go  into  the  title,  to  show  that  it  was  defective,  in  order  to  entitle  him  to  recover 
the  deposit,  as  being  paid  on  a  bad  and  defective  title.  But  Lord  Ellcnbo- 
rough  Ch.  J.  said,  "  The  plaintiff's  right  to  recover  the  money  deposited  depend- 
ed on  the  defect  of  the  title  of  the  defendant  to  the  premises,  which  he  had 
contracted  to  sell ;  and  unless  it  was  a  bad  title  he  had  no  claim  to  recover.  It 
would  be  therefore  necessary  for  him  to  show  that  the  title  was  bad." 

In  the  case  of  Bree  v.  Holbech,(v)  where  a  personal  representative  having 
found  amo  ng  the  papers  of  his  testator,  a  mortgage  deed,  and  having  assigned 
it  for  upwards  of  six  years  for  the  mortgage  money,  affirming  and  reciting  in 
the  deed  of  assignment,  that  it  was  a  mortgage  deed  made  or  mentioned  to  be 
made  between  the  mortgagor  and  mortgagee  for  that  sum ;  it  was  decided,  that 
the  assignee  could  not  recover  back  the  mortgage  money,  although  it  should 
turn  out  that  the  mortgage  was  a  forgery,  and  that  the  assignee  did  not  discover 
the  forgery,  till  within  six  years  before  he  brings  his  action,  unless  the  assignor 
knew  it  to  be  a  forgery.  Lord  Mansfield  Ch.  J.,  in  this  case,  said,  "  The  ques- 
tion is,  whether  there  has  been  any  fraud?  Now,  here  every  thing  alleged 
may  be  true,  without  any  fraud  on  the  part  of  the  defendant.  He  is  an  admin- 
istrator with  the  will  annexed,  who  finds  a  mortgage  deed  among  the  papers  of 
his  testator,  without  any  arrears  of  interest,  and  parts  with  it  bona  fide,  as  a 
marketable  commodity.  If  he  had  discovered  the  forgery,  and  had  then  got  rid 
of  the  deed  as  a  true  security,  the  case  would  have  been  very  different.  He 
did  not  covenant  for  the  goodness  of  the  title,  but  only  that  neither  he  nor  the 
testator  had  incumbered  the  estate.  It  was  incumbent  on  the  plaintiff  to  look 
to  the  goodness  of  it." 

But,  where  a  person,  supposing  himself  the  legal  representative  of  a  lessee 
for  years,  sold  the  term  and  delivered  the  lease,  but  without  any  assignment  or 
formal  conveyance,  saying  the  premises  were  his,  and  if  any  thing  happened 
he  would  see  the  vendee  righted :  it  was  determined,  that  the  vendee  might 
maintain  an  action  against  the  vendor  for  the  purchase  money,  where  the  right- 
ful administrator  of  the  tenant  for  years,  had  ousted  the  plaintiff  by  ejectment. 
Thus,  in  the  case  of  Cripps  v.  Rcade(w)  which  was  an  action  of  assumpsit 
for  money  had  and  received,  to  recover  a  sum  of  40  guineas,  which  had   been 


(t«)  Doug.  654.  (tt-)  6  Term  Rep.  606. 

#317 


SI 7  On  Promises  To  Pay  Over  Money       [Part  11. 

paid  by  the  plaintiff  to  the  defendant  for  the  purchase  of  a  leasehold  estate. 
The  *defendant  claimed  the  estate  in  question  as  administrator  to  Mary  Bartlett, 
who  had  taken  out  letters  of  administration  to  her  husband,  the  former  posses- 
sor of  the  estate,  under  the  name  of  Caleb  Bartlett,  his  real  name  being  Carey 
Bartlett.  On  the  sale,  the  lease  itself  was  delivered  to  the  plaintiff,  but  there 
was  no  assignment  or  other  conveyance  from  the  defendant ;  but  a  conversation 
took  place  between  them,  in  which  the  latter  said,  ''  that  the  premises  were  his 
right  and  property  to  do  as  he  liked  with,  and  if  any  thing  happened  he  would 
see  the  plaintiff  righted."  Afterwards  John,  the  nephew  of  Carey  Bartlett, 
took  out  letters  of  administration  to  him  by  the  right  name,  and  recovered  pos- 
session of  the  premises  by  ejectment.  At  the  trial  it  was  contended,  on  the 
part  of  the  defendant,  1st,  that  no  action  lay  to  recover  the  purchase  money,  on 
the  authority  of  Bree  v.  Holbech,{x)  where  under  circumstances  of  a  similar 
nature  the  principal  of  caveat  emptor  was  held  to  apply.  But  2dly,  If  any  ac- 
tion could  be  maintained,  it  could  only  be  on  the  special  warranty.  But  Law- 
rence Just.,  before  whom  the  cause  was  tried,  overruled  the  objections,  and  di- 
rected a  verdict  to  be  found  for  the  plaintiff,  with  liberty  for  the  defendant  to 
move  to  enter  a  nonsuit.  A  motion  for  that  purpose  was  accordingly  made : 
but  the  Court  of  King's  Bench  refused  the  rule  :  and  Lord  Kenyon  Ch.  J.  said  : 
"  I  do  not  wish  to  disturb  the  rule  of  caveat  emptor  adopted  in  Bree  v.  Holbech, 
and  in  other  cases,  where  a  regular  conveyance  was  made,  to  which  other  cov- 
enants were  not  to  be  added ;  for  in  general,  the  seller  only  covenants  for  his 
own  acts,  and  for  those  of  his  ancestor,  in  which  respect  the  case  of  a  mort- 
gage differs  from  it,  as  a  mortgagor  covenants  that  at  all  events  he  has  a  good 
title  :  but  here  the  whole  passed  by  parol,  and  it  proceeded  on  a  misapprehen- 
sion by  both  parties  that  the  defendant  was  the  legal  representative  of  the  les- 
see, though  it  turned  out  afterwards  that  he  was  not.  As  therefore  the  money 
was  paid  under  a  mistake,  I  think  that  an  action  for  money  had  and  received 
will  lie  to  recover  it  back.  In  the  case  cited  no  action  at  all  could  have  been 
maintained." 

So,  in  the  case  of  Robinson  v.  Anderton,(y)  which  was  also  an  aetion  for 
money  had  and  received.  And  at  the  trial  it  appeared,  that  the  plaintiff  had 
succeeded  the  defendant  in  a  public  house,  and  had  paid  him  for  some  fixtures 
which  belonged  to  the  lessor,  and  which  were  scheduled  in  the  lease,  and  for 
which  the  plaintiff  was  obliged  to  pay  the  lessor.  The  defendant  had  been  an 
under-tenant,  and  had  paid  the  person  of  whom  he  rented  the  house  for  these 
fixtures.  The  action  was  brought  for  the  amount  of  the  sum  paid  by  the 
plaintiff  to  the  defendant :  and  it  was  contended,  on  behalf  of  the  defendant, 
that  this  action  could  not  be  maintained,  he  having  paid  for  them  to  a  former 
tenant ;  *and  therefore  did  not  commit  any  fraud  on  the  plaintiff.  But  Lord 
Kenyon  Ch.  J.,  before  whom  the  cause  was  tried,  said,  "  This  action  imputes 
nothing  fraudulent  to  the  defendant ;  his  title  is  disaffirmed  ;  for  it  appears  he 
has  received  money  which  he  had  no  right  to,  and  which  he  must  therefore  re- 

( .<•)  Ante,  317.  ({/)  Peak's  Cas.  N.  P.  94. 

*318  *319 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.    319 

turn.     He  may  recover  back  the   money  from   the   person    to  whom  he   paid 


it." 


2.  Of  Money  Paid  upon  the  Sale  of  Cattle,  Goods,  &c.J  Where, 
by  the  terms  of  the  contract,  it  is  left  in  the  power  of  one  of  the  contracting  par- 
ties to  rescind  it,  and  he  does  so  ;  or  where  both  parties  mutually  assent  to  its 
being  rescinded  ;  and  money  has  been  received  upon  the  contract,  it  may  be  re- 
covered back  by  action  of  indebitatus  assumpsit :  but  if  the  contract  continue 
open,  the  plaintiff  cannot  declare  in  this  general  form  of  action,  but  must  state 
the  contract  and  breach  specially. (z)  Thus,  if  \.  sell  a  horse  to  B.  and  agree 
that  if  he  dislikes  and  re-delivers  the  horse  to  C.  he  should  repay  the  money, 
otherwise  A.  himself  would,  upon  re-delivery  of  the  horse  to  C,  an  assumpsit 
lies  by  B.  against  A.  for  money  received  to  his  use. (a) 

So,  in  the  case  of  Towers  v.  Barrett,(b)  which  was  an  action  of  indebitatus 
assumpsit  for  money  had  and  received :  and  on  the  trial  it  appeared,  that  the 
suit  was  instituted  by  the  plaintiff  to  recover  ten  guineas,  which  he  had  paid  to  the 
defendant  for  a  one  horse  chaise  and  harness,  on  condition  to  be  returned  in  case 
the  plaintiff's  wife  should  not  approve  of  it,  paying  3s.  6d.  per  diem  for  the  hire 
of  it.  This  contract  was  made  by  the  defendant's  servant,  but  his  master  did 
not  object  to  it  at  the  time.  The  plaintiff's  wife  not  approving  of  the  chaise, 
it  was  sent  back  at  the  expiration  of  three  days,  and  left  on  the  defendant's 
premises,  without  any  consent  on  his  part  to  receive  it.  The  hire  of  3s.  6d. 
per  diem  was  tendered  at  the  same  time,  which  the  defendant  refused,  as  well  as 
to  return  the  money.  It  was  objected,  that  an  indebitatus  assumpsit  for  money 
had  and  received  would  not  lie  ;  but  that  the  action  should  have  been  on  the 
special  contract.  The  Court,  however,  determined  that  the  action  for  money 
had  and  received  was  maintainable  ;  for  the  condition  was  to  return  the  chaise 
if  not  approved  of;  therefore  the  moment  it  was  returned,  the  contract  was 
at  an  end,  and  the  defendant  held  the  money  against  conscience,  and  without 
consideration.  Butter  Just,  said,  "  The  distinction  between  those  cases  where 
the  contract  is  open,  and  where  it  is  not  so,  is  this  :  if  the  contract  be  rescinded, 
either  as  in  this  case,  by  the  original  terms  of  the  contract,  where  no  act  remains 
to  be  done  by  the  defendant  himself,  or  by  a  subsequent  assent  by  the  defendant, 
the  plaintiff  is  entitled  to  recover  back  his  whole  money  ;  and  then  an  action 
for  money  had  and  received  *will  lie.  But  if  the  contract  be  open,  the  plain- 
tiff's demand  is  not  for  the  whole  sum,  but  for  damages  arising  out  of  that  con- 
tract. In  a  case  before  me  on  a  warranty  of  a  pair  of  horses  to  Dr.  Compton, 
that  they  were  five  years  old,  when  in  fact  they  turned  out  to  be  only  four,  and 
they  were  not  returned  within  a  certain  time,  I  held  that  if  the  plaintiff  would 
rescind  the  contract  entirely,  he  must  do  it  within  a  reasonable  time,  and  that 
as  he  had  not  rescinded  the  contract,  he  could  only  recover  damages  ;  and 
then  the  question  was,  what  was  the  difference  of  the  value  of  horses  of  four 
or  five  years  old  ?  so  that  the  difference  in  cases  of  this  kind  is  this  ;  where  the 


(z)  Vide  1  Term  Rep.  136.  Assumpsit,  A.  1. 

(a)  3  Lev.  364.    Com.  Dig.  tit.  Action  of       (6)  1  Term  Rep.  133. 

*320 


320  On  Promises  To  Pay  Over  Money        [Part  II. 

plaintiff  is  entitled  to  recover  his  whole  money,  he  must  show  that  the  contract 
is  at  an  end  ;  but  if  it  continue  open,  he  can  only  recover  damages,  and  then 
he  must  state  the  special  contract,  and  the  breach  of  it." 

But  in  the  case  of  Weston  v.  Doiones,(c)  which  was  also  an  action  for  mon- 
ey had  and  received;  and  at  the  trial  before  Lord  Mansfield,  the  plaintiff  prov- 
ed that  the  defendant,  in  consideration  of  seventy  guineas,  had  sold  him  a  pair 
of  coach  horses,  which  he  undertook  to  take  back,  if  the  plaintiff  should  disap- 
prove of  them,  and  return  them  within'a  month  ;  the  plaintiff  did  return  them 
within  a  month,  but  took  another  pair  from  the  defendant  in  their  stead,  without 
making  any  new  agreement.  These  he  also  returned  within  a  month,  and  re- 
ceived a  third  pair  on  the  23d  of  December,  without  any  fresh  bargain.  This 
third  pair  he  disapproved  of,  because  they  were  restive,  and  would  not  draw,  and 
offered  to  return  them  on  the  5th  of  January,  but  the  defendant  refused  to  take 
them  back.  Upon  this  evidence  his  Lordship  directed  a  nonsuit;  and,  on  a 
rule  to  show  cause  why  the  nonsuit  should  not  be  set  aside,  and  a  new  trial 
granted,  the  question  was,  whether  the  action  of  assumpsit  for  money  had  and 
received  would  lie  in  this  case  ?  The  Court  were  of  opinion  that  the  contract 
continued  open  ;  and  the  plaintiff's  only  remedy  was  by  special  assumpsit  upon 
the  warranty,  and  not  indebitatus  assumpsit  for  money  had  and  received ;  and 
that  it  resembled  the  case  of  Power  v.  Wells, (d)  where  the  plaintiff  gave  a  horse 
of  his  own  and  twenty  guineas  for  a  horse  of  the  defendant's,  which  was  war- 
ranted sound,  but  proved  to  be  unsound ;  upon  which  the  plaintiff,  after  tender- 
ing a  return,  as  mentioned  in  the  last  case,  brought  the  action  for  money  had 
and  received  for  the  twenty  guineas,  and  also  an  action  of  trover  for  his 
own  horse.  The  Court  held  that  neither  would  lie  :  not  the  latter  action,  be- 
cause  the  property  had  been  changed. 

So,  where  the  seller  of  a  horse  had  warranted  it  sound  ;  and  in  a  subsequent 
conversation  said,  "  that    if  the    horse  were    unsound,  (which  he  denied)    he 
would  take  it  again,  and  return  the  money  ;"  this  does  not  amount   to  an  aban- 
donment of  the  original    c  ontract,  which  still  remains  *open  ;  and   though    the 
horse  be  unsound,  the  vendee  must  sue  upon  the  warranty,  and  cannot  maintain 
indebitatus  assumpsit  for  money  had   and  received  to  recover  back  the  price, 
after  a  tender  of  the  horse.     This  was  settled  in  the  case  of  Payne  v.  Whale,(e) 
in  which  the  Court  determined  that   the  plaintiff  could  not  recover  in  this  gen- 
eral form  of  action,  but    ought  to  have   declared  specially  ;  and    Lord   Ellen- 
borough  Ch.   J.,  in  delivering  the  opinion  of  the  Court,  said,  "  This  was  a 
cause  tried  before  me   at  Guildhall,  to   recover  back  the  price  of  a  horse  sold 
as  a  sound  horse,  but  which  proved  to  be  unsound.     It  was  to   be  collected 
from  the  evidence,  that  there  had  been  a  warranty  of  soundness  at  the  time  of 
the  original  contract  of  sale  :  but  in  a  subsequent  conversation,  when  the  plain- 
tiff objected  that  the  horse  was  unsound,  the  defendant  said,  "that  if  the  horse 
were  unsound,  he  would   take  it  again  and  return  the  money."     And  it  was 

(c)  Doug.  23.  (e)  7  East  Rep.  274. 

(d)  Doug.  24.  Cowp.  818. 

*321 


Chap.  4]   Had  and  Received  to  the  Use  oj  Another.      321 

contended  that  the  action  for  money  had  and  received  would  not  lie,  upon  the  au- 
thority of  Power  v.  W?.Us,(f)  and  Weston  v.  Dnwnes,{g)  because  this  was 
no  other  than  a  mode  of  trying  the  warranty,  which  could  only  be  by  a  special 
action  on  the  case.  It  had  occurred  to  me  at  the  trial,  that  the  defendant,  by 
means  of  his  promise  to  return  the  money  and  take  back  the  horse  if  it  were 
unsound,  had  placed  himself  in  the  situation  of  a  stake-holder;  and  therefore, 
that  on  proof  that  the  horse  was  unsound,  he  was  to  be  considered  as  holding 
the  money  for  the  use  of  the  plaintiff.  But  upon  further  consideration,  I  am 
clearly  satisfied  that  the  promise  did  not  discharge  the  original  warranty,  and 
that  the  party  complaining  of  the  breach  of  that  warranty  must  still  sue  upon 
it.  The  second  conversation  is  not  to  be  considered  as  an  abandonment  of  the 
original  warranty,  the  performance  of  which  the  defendant  still  insisted  upon ; 
but  rather  as  a  declaration  that  if  the  warranty  were  shown  to  be  broken,  he 
would  do  that  which  is  visually  done  in  such  cases,  take  back  the  horse  and 
repay  the  money.  Then  where  any  question  on  the  warranty  remains  to  be 
discussed,  it  ought  to  be  so  in  a  shape  to  give  the  other  party  notice  of  it,  name- 
ly, in  an  action  upon  the  warranty." 

So,  in  the  case  of  Cooke  v.  Munstone,(h)  which  was  an  action  of  assump- 
sit. And  the  first  count  of  the  declaration  was  for  not  delivering  35  chaldrons 
of  soil  or  breeze  according  to  a  special  contract  between  the  defendant  and  the 
plaintiff ;  to  which  the  count  for  money  had  and  received  was  added.  At  the 
trial,  before  Sir  James  Mansfield  Ch.  J.,  the  plaintiff  in  support  of  the  special 
contract  proved  by  a  witness,  that  the  defendant  having  agreed  to  supply  the 
plaintiff  with  35  chaldrons  of  soil  at  7s.  per  chaldron,  he  thereupon  paid  to 
the  defendant  21.  5s.  as  earnest ;  that  the  plaintiff  afterwards  sent  his  barge 
and  demanded  the  soil,  offering  at  the  same  time  to  pay  the  remainder  of  the 
purchase  money  as  soon  as  the  soil  *should  be  put  on  board,  but  that  the  de- 
fendant refused  to  deliver  it  on  account  of  a  dispute  with  the  plaintiff  respec- 
ting the  wharf  from  whence  it  should  be  loaded.  It  appearing,  however,  that 
soil  and  breeze  were  very  different  things,  it  was  objected  for  the  defendant, 
that  as  the  plaintiff  had  declared  upon  a  contract  for  the  delivery  of  soil  or 
breeze,  and  had  only  proved  a  contract  for  the  delivery  of  soil,  he  must  be  non- 
suited ;  whereupon  the  plaintiff  insisted  that  he  was  entitled  for  a  verdict  for 
21.  5s.,  on  the  count  for  money  had  and  received.  His  Lordship  thought  that 
as  the  plaintiff  had  proceeded  upon  a  contract  which  never  appeared  to  have 
been  rescinded  by  any  act  or  agreement  between  the  parties,  but  only  broken 
by  a  refusal  of  one  party  to  perform  it,  he  was  not  at  liberty  to  recover  the  de- 
posit upon  the  count  for  money  had  and  received,  and  accordingly  nonsuited 
the  plaintiff:  and  of  this  opinion  was  the  Court  of  Common  Picas  upon  a  ride 
for  setting  aside  the  nonsuit. 

So,  in  the  case  of  Fortune  v.  Lingkam,(i)   it  was   held,    that  if  upon  a  con- 


(/)  Ante,  320.  (h)   1  New  Rep.  C.  B.  351. 

(«•)  Ante,  320.  (0   2  Cainpb.  416. 

40  #322 


322  On  Promises  To  Pay  Over  Money        [Part  II. 

tract  for  the  sale  of  a  quantity  of  stock  fish  to  be  delivered  according  to  sam- 
ple, and  the  price  is  paid  for  them  ;  and  the  seller  afterwards  delivers  them 
much  inferior  to  the  sample,  and  in  a  very  bad  and  putrid  state,  but  they  are 
accepted  by  the  buyer ;  the  latter  cannot  maintain  an  action  for  money  had 
received  to  recover  back  the  fine  so  paid,  but  must  declare  specially  upon  the 
warranty.  And  in  this  case  Lord  Ellenborough  Ch.  J.  said,  "  If,  instead  of 
stock  fish,  the  defendant  had  delivered  to  the  plaintiff  a  quantity  of  saw-dust, 
the  price  might  be  recovered  back  in  the  manner  proposed.  But  stockfish 
were  delivered,  though  seemingly  in  very  bad  condition;  and  you  cannot  be 
permitted  to  try  whether  they  were  of  a  good  or  bad  quality,  whether  they  were 
fit  or  unfit  for  use,  in  an  action  for  money  had  and  received.  For  this  purpose 
a  special  count  was  indispensable." 

3.    Of    Money  Paid  in    Consideration  of  some  Act   to    be  done  or 
other  Benefit  to  be  Received  but  which  has  Failed.] — :Where  a  per- 
son has  paid  money  upon  a  contractor  agreement,  which  lias  not  been  perform- 
ed, he  may,  in  general,  affirm  the   agreement,  by  bringing  a  special    action  of 
assumpsit  thereon  for  general  damages  ;  or  he  may  disaffirm  it,  and  recover  back 
the  money  so  paid  by  action  of  indebitatus  assumpsit  for  money  had  and  receiv- 
ed.    This  was  settled   in  the  case  of  Dutch  v.  Warr  en,(k)  which  was  an  ac- 
tion of  indebitatus  assumpsit  for  money  had  and  received.     The  case  was  as  fol- 
lows ; — Upon  the  18th  August,  1720,  on  payment  of  262?.  10s.  by  the  plaintiff  to 
the  defendant,  the  defendant  agreed  to  transfer  him  five  shares  in  the  Welch  cop- 
per mines  at  the  opening  of  the  books  ;  and  for  security  of  his  so  doing  gave  him 
this  note  : — "  18th  of  August,    1720.     I  do  hereby   *acknowledge  to  have  re- 
ceived of  Philip  Dutch,  262?.  \0s.  as  a  consideration  for  the  purchase  of  five 
shares;  which  I  do  hereby   promise   to  transfer  to  the  said  Philip   Dutch   as 
soon  as  the   books  are  open ;  being  five  shares  in   the  Welch  copper  mines. 
Witness  my  hand,  Robert    Warren.1'     The  books  were  opened    on  the  22d  of 
the  said  month  of  August,   when   Dutch  requested  Warren  to  transfer   to  him 
the  said  five  shares,    which  he   refused  to  do,    and  told  the   plaintiff    he  might 
take  his  remedy.     Whereupon  the  plaintiff  brought  this  action  for  the   consid- 
eration  money  paid  by  him.     And  a  case  being   made  for  the  opinion  of  the 
Court  of  Common  Pleas,  the  action  was  resolved  to  be  well  brought ;  and  the 
Court  said,  "  that  the  extending  these  actions  depends  on   the  notion  of  fraud. 
If  one  man  takes  another's    money  to  do  a  thing,  and  refuses  to  do  it,  it   is  a 
fraud  ;  and  it  is  at  the  election  of  the  party  injured,  either  to  affirm   the   agree- 
ment, by  bringing  an  action  for  the  non-performance  of  it ;  or  to   disaffirm  the 
agreement    ab  initio,  by  reason  of  the  fraud,    and  bring  an   action   for    money 
had  and  received  to  his  use." 

So,  in  the  case  of  Giles  and  others  v.  Edwards, (m)  which  was  an  action  for 
money  had  and  received,  tried  before  Mr.  Justice  Lawrence  at  the  spring  as- 
sizes for  Shrewsbury,    1797.     The  case  was   as  follows  :  On  the  6th  of  Jurie, 

(k)  Cited  at  large  by  Lord  Mansfield,  in     not  so  correctly. 
2  Bur.   1010.  and  reported  in  Stra.  406.' but  (m)  7  Term  Rep.  181. 

*323 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.         323 

1791,  the  defendant  agreed  to  sell  to  the  plaintiffs  all  his  cordwood  growing  at 
Trcdgodocr  in  Shropshire  at  11  s.  6d.  per  cord,  ready  cut;  the  wood  was  to  be 
coaled  and  cleared  from  off  the  premises  by  Michaelmas,  1792,  and  the  money 
was  to  be  paid  on  the  1st  of  March,  1792.  It  also  appeared,  that  the  custom  was 
for  the  seller  to  cut  off  the  boughs  and  trunks,  and  then  cord  it,  and  for  the  buy- 
er to  re-cord  it ;  after  which  it  became  the  property  of  the  buyer  :  the  defend- 
ant cut  sixty  cords,  ten  of  which  he  corded,  and  the  plaintiffs  re-corded  half  a 
cord,  and  measured  the  rest.  On  the  8th  of  March,  1792,  the  plaintiffs  paid 
the  defendant  20  guineas,  but  the  defendant  neglecting  to  cord  the  rest  of  the 
wood,  the  plaintiffs  brought  this  action  to  recover  back  the  20  guineas,  as  hav- 
ing been  paid  on  a  contract  that  had  failed.  It  was  objected  on  the  trial  that 
this  action  could  not  be  maintained,  the  contract  being  still  open,  and  that  the 
plaintiffs  should  have  brought  a  special  action  on  the  case  for  non-performance 
of  the  contract.  But  the  learned  judge  was  of  opinion  that,  as  it  was  owing  to 
the  fault  and  negligence  of  the  defendant  that  the  contract,  which  was  entire , 
was  not  carried  into  execution,  the  plaintiffs  were  at  liberty  to  consider  the  con- 
tract at  an  end,  and  recover  back  the  money  that  they  had  paid,  the  considera- 
tion having  failed.  That  what  had  been  done  by  the  plaintiffs  could  not  be 
considered  as  an  execution  of  the  contract  in  part,  for  that  all  that  they  had  done 
was  merely  to  measure  the  wood,  and  re-cord  a  very  small  part  of  it.  The 
plaintiffs  accordingly  obtained  a  *verdict.  And  upon  a  rule  to  set  aside  this  ver- 
dict, and  to  enter  a  non-suit,  the  court  were  clearly  of  opinion,  that  the  direc- 
tions given  at  the  trial  were  right ;  and  Lord  Kenyon  Ch.  J.  said,  "  This  was 
an  entire  contract,  and  as  by  the  defendant's  default,  the  plaintiffs  could  not 
perform  what  they  had  undertaken  to  do,  they  had  a  right  to  put  an  end  to  the 
whole  contract,  and  to  recover  back  the  money  that  they  had  paid  under  it ; 
they  were  not  bound  to  take  part  of  the  wood  only." 

There  are,  however,  a  class  of  cases  in  which  it  has  been  determined,  that 
though  the  contract  has  not  been  performed,  and  the  party  paying  the  money 
has  derived  no  benefit  from  the  contract,  and  the  consideration  has  failed,  the 
money  cannot  be  recovered  back.  Thus,  where  A.  having  obtained  a  patent 
for  an  invention,  of  which  he  supposed  himself  the  inventor,  agreed  to  let  B. 
use  it  upon  payment  of  a  certain  annual  sum  secured  by  bond  ;  this  sum  was 
paid  for  several  years,  when  B.  discovering  that  A.  was  not  the  inventor,  but 
that  it  was  in  public  use  before  A.  obtained  his  patent,  brought  an  action  for 
money  had  and  received  to  recover  back  the  amount  of  the  annuity  paid.  But 
it  was  determined  that  B.  could  not  recover  back  the  amount  of  the  annuity  so 
paid ;  both  parties  having  acted  under  a  mistake,  and  B.  having  had  the  use  of 
the  invention. (n) 

So,  in  the  case  of  Cartwright  v.  Rmi}!ci/,(o)  which  was  an  action  of  assump- 
sit for  money  had  and  received.  The  plaintiff  was  a  patentee  of  a  steam- 
engine,  and  had   employed  the  defendant,  who  was  an  engine  maker,  to  make 


(»i)  Tayler  v.  Hare,  1  New  Rep.  260.  (o)  2  Esp.  Rep.  723. 

*334 


324  On  Promises  To  Pay  Over  Money  [Part  II. 

some  engines  for  him  under  the  patent  :  in  the  progress  of  the  work   the  plain- 
tiff had  advanced  several  sums  of  money  to  the  defendant,  which  he  sought  now 
to  recover  back  on   the  ground  that   the  defendant  had    been  so    inattentive  to 
the  order,  and  so  long  in  completing   the  engines,  that    the  opportunity  of  dis- 
posing of  them  was  lost,  so    that   they  became  useless   to    the  plaintiff.     The 
ground  relied  upon,  to    establish   the  plaintiff's  right  to  recover  in    this  action, 
was,  that  the  money  was  paid  without  any  consideration,  the  work,  for    which 
it   had  been  given,  having  been  rendered  by  the   defendant's  own  default,  of  no 
value  to  the  plaintiff.     But  Lord  Kcmjon  Ch.  J.  said,  "  This  action  cannot  be 
maintained,  nor  the  money  recovered  back  again  by  it ;  it  has  been  paid  by  the 
plaintiff  voluntarily,  and  where  the  money  has  been   so  paid,  it  must    be   taken 
to  be  properly  and  legally  paid  ;  nor  can  money  be   recovered   back  again   by 
this  form   of  action,  unless    there   are  some  circumstances    to  shew    that  the 
plaintiff  paid  it  through  mistake,  or  in  consequence  of  coercion." 

And  in  the  case  of  Stokes  v.    Twitchen(p)  which  was  an  action  of  indebitatus 
assumpsit,  brought  to  recover  back  601.  advanced  by  the  plaintiff  to  the  defend- 
ant, as  a  premium  or  apprentice-fee  with  her  son  upon  *an  indenture  of  appren- 
ticeship, which  did  not  contain  any  statement  respecting  the  premium,  and  was 
not  stamped  ;  and  the  indenture  being  void  for  want  of  such  statement,  and  al- 
so as  not  having  been  stamped  within  time :  it  was  determined  by  the  Court  of 
Common  Pleas,  that  the  plaintiff  could  not  recover  back  the  apprentice-fee  from 
the  defendant,    though  paid   without    consideration,   the  indenture  being  void. 
And  Gibbs  Ch.  J.  said,  "This  was  an  action  in  which  the  plaintiff  sought  to  re- 
cover the  sum  of  60Z.,  paid  as  a  premium  with  her  son  to  the  defendant,  under 
an  indenture  of  apprenticeship,  on  the  ground  that  the  premium  was  not  inserted 
in  the  indenture,  and,  that  therefore  the  indenture  was  void,  and  the  money  paid 
without  consideration.  Supposing  the  plaintiff  to  be  an  innocent  party,  she  would 
certainly  be  entitled  to  recover  the  money  so  paid,  as  being  paid  without  consid- 
eration ;  but  any  plaintiff  who  seeks  to  recover  on  such  grounds,  must  come  into 
court  with  clean  hands.     It  has  been  contended  for  the  plaintiff  in  this  case,  that 
no  imputation  rests  on  her ;  for  that  it  was  the  master's  duty  to    insert  the  pre- 
mium, on  whom  alone  the  legislature  impose  the  penalty  foi  the  default.     This 
latter  proposition  is  true,  and  if  the  case  rested  here,  I  should  be  of  opinion  that 
the  plaintiff  was  entitled  to  recover  ;  but  there  are   other  circumstances  in  this 
case  ;  circumstances  which  deeply  implicate  the  plaintiff  in  a  collusion  for  the 
purpose  of  fraud.     With  the  notice  before  her  eyes,  she  executed  the  indenture 
without  the  insertion  of  the  premium,  and  by  her  act  endeavoured  to  give  valid- 
ity to  an   instrument  which   had  not  that   in  it  which  the   legislature   has  pre- 
scribed for  giving  effect  to  the  provisions    of  the    revenue.       The  legislature 
marks  out  the  master  alone   for  punishment ;  but  all   are  involved   in  the   of- 
fence who   lend     assistance   to  the    master   in   giving    effect,   as   this   plain- 
tiff has   done,   to  unlawful   purposes.     In    this    case  both   the  defendant  and 
the  plaintiff  where  parties  to  the  offence.     The  former,  by  concealing  from  the 


(P)  3  Taunt.  402. 
•325 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.     325 

public  and  the  revenue  officer,  the  amount  of  the  premium,  and  so  defrauding  the 
revenue  ;  the  latter  by  enabling  the  defendant  to  conceal  that  amount  from  the 
revenue,  whereby  she  was  likely  to  find  the  defendant  content  with  a  less  premi- 
um than  he  might  otherwise  have  been  disposed  to  take.  Under  these  circum- 
stances the  plaintiff  cannot  be  considered  as  an  innocent  party  ;  and  we  are  of 
opinion  that  she  is  not  entitled  to  recover." 

So,  in  the  case  of  Dewberry  v.  Chapman,  (p)  which  was  an  action  of  indebi- 
tatus asswnpsit  for  money  had  and  received,  where  the  defendant  had  taken 
the  plaintiff's  son  apprentice,  and  received  30/.,  and  had  engaged  to  teach  him 
the  trade  of  a  goldsmith,  and  make  him  free  of  London ":  the  defendant,  however, 
was  a  foreigner,  and  though  he  had  been  bound  to  a  freeman,  yet  by  the  custom 
of  London  no  apprentice  *can  have  his  freedom  without  an  actual  service  with  a 
freeman.  It  was  ruled  by  Holt  Ch.  J.,  "That  an  indebitatus  assumpsit  would 
not  lie,  the  defendant  having  cheated  the  plaintiff  of  his  money,  and  that  the 
plaintiff  had  no  remedy,  unless  by  special  action  on  the  case  for  not  making 
him  a  freeman." 

If,  upon  an  agreement  to  carry  a  passenger  on  board  a  ship,  from  London 
to  the  Wat  Indies,  the  passage  money  is  to  be  paid  in  Londan  before  the 
commencement  of  the  voyage ;  and  the  passenger  puts  his  baggage  on  board 
in  the  Thames,  meaning  himself  to  embark  at  Portsmouth  ;  and  the  ship  is  lost 
in  going  round  to  that  place ;  the  passage  money  cannot  be  recovered  back. 
But  if  the  agreement  was  to  carry  the  passenger  from  Portsmouth  to  the  West 
Indies,  it  might  have  been  recovered  back ;  and  the  learned  Ch.  J.  Gibbs  in 
such  case  said,  "  If  the  voyage  was  commenced,  and  the  ship  was  prevented 
completing  it  by  perils  of  navigation,  the  captain  may  be  entitled  to  retain  the 
passage  money  previously  paid  to  him.  The  contract  for  this  purpose  may  ei- 
ther be  express,  or  may  be  evidenced  by  established  usage.  Here  it  is  proved, 
that  in  West  India  voyages,  the  passage  money  is  paid  before  the  voyage 
commences,  and  it  does  not  appear  to  be  returned,  although  the  voyage  is  de- 
feated. On  the  other  hand,  if  the  ship  was  lost  before  the  commencement  of  the 
voyage,  for  which  these  parties  had  contracted,  the  money  paid  by  anticipation 
must  be  returned."  (q) 

So,  in  the  case  of  Dc  Silvale  v.  Kendall, (r)  which  was  an  action  for  money 
had  and  received.  And  at  the  trial,  it  appeared,  that  in  a  charter  party  made 
between  the  master  of  the  ship  and  the  freighter,  upon  a  voyage  from  Liver- 
pool to  Maranham,  and  thence  back  to  Liverpool,  the  freighter  covenanted 
that  he  would  pay  for  the  freight  from  Liverpool  to  Maranham  120/.,  and  from 
Maranham  to  Liverpool  at  the  rate  of  2  l-2d.  per  lb.  for  cotton,  which  should 
be  delivered  at  Liverpool ;  such  freight  to  be  paid  as  follows,  viz.,  120/.  for 
freight  of  the  outward  cargo  to  Maranham,  and  as  much  cash  a3  might  be  found 
necessary  for  the  vessel's  disbursements    in  Maranham,  to  be  advanced    by  the 


(jj)  Comb.  311.  Holt's  Rep.  35.  S.  C.  (')  4  Maulc  &.  Sel.  37. 

(q)  Gillan  v.  Simpkin,  t  Campb.  241. 

*326 


325  On  Promises  To  Pay  Over  Money     [Part  II. 

freighter,  his  agents,  or  assigns  to  the  master,  when  required,  free  from  interest 
and  commission,  at  the  current  exchange  of  the  place;  and  the  residue  of  such 
freight  to  be  paid  on  delivery  of  the  cargo  in  Liverpool.  The  ship  arrived  at 
Maranham,  where  the  120/.  outward  freight,  and  also  192/.  for  the  necessary 
disbursements  of  the  ship,  were  paid  or  advanced  by  the  freighter  to  the  mas- 
ter ;  and  the  ship  received  her  homeward  cargo  and  sailed  for  Liverpool,  but 
was  lost  by  capture.  The  Court  determined,  that  the  freighter  was  not  entitled 
to  recover  back  the  192/.  And  Bayley  Just,  said,  "  Wherever  there  is  an  ex- 
press stipulation  that  the  party  who  is  to  be  entitled  to  freight,  shall  be  paid  any 
portion  of  *it  in  advance,  there  ought  also  to  be  an  express  stipulation  that 
the  party  paying  it  shall  be  entitled  to  recover  it  back,  if  freight  be  not  earned, 
if  such  be  the  intention  of  the  parties  to  the  instrument.  For  without  some 
provision  of  that  sort  how  are  we  to  raise  a  new  implied  contract  to  that  effect  ? 
It  seems  clear,  that  the  parties  to  this  instrument  have  stipulated  for  a  partial 
payment  in  advance  by  way  of  freight,  and  not  as  a  loan  ;  for  after  settling 
the  amount  and  rate  of  freight  to  be  paid  for  the  voyage  out  and  home,  they 
stipulate  that  such  freight  shall  be  paid  as  follows,  that  is,  the  outward  freight 
to  Maranham,  and  as  much  cash  as  should  be  necessary  for  the  ship's  disburse- 
ments in  Maranham,  to  be  advanced  by  the  freighter  when  required,  free  from 
interest  and  commission,  at  the  current  exchange  of  the  place,  and  the  residue 
of  such  freight  on  the  delivery  of  the  homeward  cargo.  Therefore,  taking 
the  whole  of  the  clause  together,  it  seems  to  me,  that  this  payment  is  to  be 
considered  as  a  payment  of  so  much  of  the  freight  in  advance.  And  if  that  be 
so,  upon  what  ground  is  it  to  be  recovered  back  ?  It  is  suggested  as  a  ground, 
that  the  freight  has  failed  by  the  non-performance  of  the  voyage  ;  and  thus  the 
plaintiff  has  derived  no  benefit  from  it ;  but  what  benefit  has  the  defendant 
derived  ?  He  also  has  lost  as  well  as  the  plaintiff,  and  the  question  is,  whether 
he  is  to  bear  a  farther  loss  ?  Now  in  order  to  maintain  money  had  and  receiv- 
ed, it  is  in  general  incumbent  upon  the  plaintiff  to  shew,  that  the  defendant  has 
money  of  the  plaintiff',  which  in  equity  and  good  conscience  he  ought  not  to 
detain  from  him.  But  here  the  question  raised  is  not  whether  the  defendant 
has  money  which  he  ought  not  to  detain,  but  whether  out  of  his  own  money  he 
shall  be  bound  to  make  good  that  which  the  plaintiff  has  lost.  It  seems  to  me 
that  the  defendant  shall  not  be  so  bound. 

But  in  the  case  of  Robinson  v.  Anderton,(s)  which  was  also  an  action  of 
assumpsit  for  money  had  and  received.  The  plaintiff  had  succeeded  the  de- 
fendant in  a  public-house,  and  paid  him  for  some  fixtures  which  belonged  to  the 
house,  as  being  scheduled  in  the  original  lease,  and  for  which  the  plaintiff  was 
afterwards  obliged  to  pay  the  lessor.  The  defendant  had  been  under  tenant  of 
the  house,  and  had  paid  the  person  of  whom  he  rented  it  for  these  very  fixtures. 
On  behalf  of  the  defendant,  it  was  contended  that  this  action  could  not  be  main- 
tained.    The  present  defendant  had  himself  paid  for  these  fixtures,  and  of 


(s)  Peake  Cas.  N.  P.  04. 
"327 


Chap.  4.]    Had  and  Received  to  the  Use  of  Another-    327 

course  thought  he  was  entitled  to  sell  them,  and  as  he  did  not  commit  any  fraud 
on  the  plaintiff,  he  could  not,  in  this  action,  be  compelled  to  refund  the  money. 
Lord  Kenyon  Ch.  J.,  before  whom  the  cause  was  tried,  said,  "  This  action 
imputes  nothing  criminal  to  the  defendant ;  his  title  is  disaffirmed,  for  it  appears 
he  has  received  money  which  he  had  no  right  to,  and  which  he  must  there- 
fore return.  He  may  recover  back  the  money  from  *the  person  to  whom  he  paid 
it,  and,  perhaps,   tax  the  costs  of  this  judgment  to  it." 

Lastly.  —  Of  Money  Received  on  the  Sale  of  Annuities,  where 
a  good  Title  cannot  be  made,  or  where  the  Deeds  have  been  set 
aside  or  put  an  End  to  by  Agreement  or  otherwise.]  —  Where  the 
vendor  of  an  annuity  engages  that  a  good  title  shall  be  made  to  the  vendee  on 
a  particular  day,  he  must  be  prepared  to  produce  his  title  deeds  at  the  particu- 
lar day,  or  the  vendee  is  entitled  to  rescind  the  contract,  and  recover  back  his 
deposit  money  in  an  action  of  indebitatus  assumpsit  for  money  had  and  receiv- 
ed. Thus,  in  the  case  of  Berry  v.  Youvg,(t)  which  was  an  action  for 
money  had  and  received,  and  brought  to  recover  back  the  deposit  money  paid 
by  the  plaintiff,  who  was  the  purchaser  of  an  annuity  sold  by  the  defendant  (an 
auctioneer)  at  a  public  auction.  One  of  the  conditions  of  sale  was,  that  a 
good  title  should  be  made  out  by  the  10th  of  July.  In  the  beginning  of  July 
the  plaintiff  called  on  the  seller  of  the  annuity,  to  show  him  the  title  deeds : 
but  he  not  having  them  in  possession,  gave  him  an  abstract  of  the  title,  which 
did  not  contain  any  of  the  deeds.  At  the  trial,  before  Lord  Kenyon  Ch.  J.  it 
was  submitted  to  his  lordship,  that  application  ought  to  have  been  made  to  the 
vendor  at  an  earlier  period,  in  order  to  enable  him  to  get  the  deeds  by  the  10th 
of  July.  But  his  lordship  said,  "  A  seller  of  an  estate  ought  to  be  prepared  to 
produce  his  title  deeds  at  the  particular  day :  a  court  of  equity,  indeed,  will 
under  particular  circumstances,  enlarge  the  time,  but  then  those  circumstances 
entitling  him  to  such  indulgence  must  clearly  appear  ;  which  is  not  the  case 
in  this  instance.  It  is,  however  objected,  that  the  plaintiff  had  no  right  to  the 
possession  of  those  deeds  ;  but  though  he  had  no  right  to  keep  them,  he 
had  a  right  to  inspect  them.  A  court  of  equity  would  have  obliged  the  vendor 
to  give  attested  copies  of  the  deeds  at  his  own  expense,  with  an  undertaking  to 
produce  them  thereafter  at  the  vendee's  expense,  for  the  support  of  his  title. 
As  the  seller,  therefore,  has  here  failed  in  completing  his  engagement,  the 
plaintiff  is  entitled  to  a  return  of  his  deposit  money." 

So,  where  the  consideration  of  an  annuity  consists  partly  of  money  actually 
paid,  and  partly  of  a  precedent  debt  for  goods  bona  fide  sold  to  the  grantor ; 
and  the  annuity  is  set  aside  by  the  court,  at  the  instance  of  the  grantor,  for 
some  mistake  in  not  complying  with  the  formal  requisites  of  the  annuity  act, 
(17  Geo.  3.  c.  26.,)  and  not  on  account  of  any  fraud  in  the  transaction,  the 
grantee  may  recover  back  the  consideration  in  an  action  of  indebitatus  assumpsit 
for  money  had  and  received,  and  goods  sold  and  delivered.     Thus,  in  the  case  of 


(0  Sittings  after  Mich.  Term,  1783.  2  Esp.    Rep.  640.  n.  a. 

*328 


328         On  Promises  To  Pay  Over  Money  [Part  II. 

Shove  v.  Webb,[u)  which  was  an  action  of  indebitatus  assumpsit  for  goods  sold 
and  delivered,  and  *money  had  and  received.     On  the  trial,  a  verdict  was  tak- 
en for  the  plaintiff,  damages  160/.  17s.  3d.,  subject  to  the  opinion  of  the  Court 
as  to  the  sum  of  118/.    17s.  3d.  part  thereof  on   the  following  facts  :  The  de- 
fendant on  the  26th  of  July  1783,  executed  a  bond  and  warrant  of  attorney  to  con- 
fess judgment  thereon  in  the  court  of  Common  Pleas,  for  securing  an  annuity  of 
25/.  during  the  life  of  the  defendant.     The  defendant  also  executed  an  assignment 
of  his  half  pay  as  an  ensign  in  the  army  as  a   collateral  security.     The   deeds 
for  securing  the  annuity  were  afterwards    set  aside   in  the  Common  Pleas,  be- 
cause part  of  the   consideration,   for  which  the  annuity  was  granted,  was  46/. 
19s.  9(7.  due  from  the   defendant   to  the  plaintiff  for  goods  previously  sold  by 
the  plaintiff  to  him,   which  was  not  specified  in  the  memorial  as  registered. 
The  residue  of  the  consideration,  for  which  the   annuity  was  granted,  was  71/. 
17s.  6d.   paid  by  the  plaintiff  to  the   defendant  in  cash   at  the  time  of  granting 
the  annuity.       The    defendant  was  indebted  to  the  plaintiff  in   42/.  for  goods 
sold.     And  the  question  for  the  opinion  of  the  Court  was,  whether   the  plaintiff 
was  entitled  to  recover  any  and  what  sum  beyond  the  42/.      And   after   argu- 
ment, the  Court  determined,  that  the  plaintiff  was   entitled  to   recover  for  his 
whole   demand.       And   Ashhurst  Just.,  in  delivering  the  opinion  of  the  Court, 
said,  "  The  contract  was  strictly   legal,  and  not  within  the  mischiefs  intended 
to  be  remedied  by  the  annuity  act.     And  the  security  was  not  set  aside  on  ac- 
count of  any  fraud  or  defect  in  the  contract  itself,  but  upon  a  formal  defect  in 
makincr  the   memorial,   or   at  least    it  was    an  innocent  mistake   of    the  law. 
And   taking  that  to  be   the  case,  when  the  security   was   vacated,  the  original 
contract  revived.     If  indeed  the  sale  had  been  made  a  few  days  before,  colour- 
ably,  and  with  a  view  of  afterwards  stating  the  antecedent  debt  as  a  part  of  the 
consideration  of  an  annuity  intended  to  be  granted,  that   would  have  totally  al- 
tered the  case ;  but  as  it  is  to  be  taken  that  they  were  lona  fide  sold,  we  think 
the  plaintiff  is  entitled  to  recover  for  them.       In  regard  to  the  money  paid  as 
part  of  the  consideration  ;  as  the  security  is  not  set  aside   for  any  fraud  in  the 
transaction,  but  merely  for  a  mistake  or  omission  in  form,  it  becomes  unconsci- 
entious in  the  party  to  retain  it ;  and  is  therefore  recoverable  on  the  count  for 
money  had  and  received  to  the  plaintiff's  use." 

So,  where  the  grantor  of  an  annuity  applied  to  have  it  set  aside  on  motion, 
and  to  vacate  a  judgment,  which  had  been  irregularly  entered  up  on  a  warrant 
of  attorney,  which  was  given  for  entering  up  judgment  on  a  bond  in  another 
court  to  secure  the  annuity,  and  which  warrant  of  attorney  was  improperly  de- 
scribed in  the  memorial ;  and  the  Court  accordingly  set  aside  the  judgment :  it 
was  determined,  that  the  grantee  might  recover  back  the  consideration  money 
in  assumpsit,  and  was  not  put  to  his  action  on  a  bond  which  was  also  given 
for  securing  the  annuity,  and  which  bond  was  not  ordered  to  be  cancelled, 
though  voidable  *in  pleading  by  virtue  of  the  annuity  act.       Thus,  in  the  case 


(«)   1  Term  Rep.  732. 
*329  *330 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another-     330 

of  Scurfield  v.  Gowland,(v)  which  was  an  action  of  assumpsit  for  money  had 
and  received.  At  the  trial,  it  appeared  that  the  defendant  had  granted  to  the 
plaintiff  a  certain  annuity  secured  by  a  deed,  a  bond,  and  warrant  of  attorney 
to  enter  up  judgment  in  the  Common  Pleas  ;  but  in  the  memorial  of  the  annui- 
ty the  latter  instrument  was  stated  to  be  a  warranty  of  attorney  to  enter  up 
judgment  in  the  Court  of  King's  Bench,  and  judgment  having  afterwards  been 
entered  up  by  mistake  in  the  Court  of  King's  Bench,  the  defendant  had  applied 
to  set  aside  the  annuity  upon  this  error  in  the  memorial,  and  to  have  the  secu- 
rities delivered  up  to  be  cancelled.  And  the  Court  of  King's  Bench  did  ac- 
cordingly set  aside  the  judgment,  and  direct  that  the  warrant  of  attorney  should 
be  delivered  up  to  be  cancelled,  but  made  no  order  as  to  the  deed  or  bond, 
which  remained  uncancelled  :  nor  was  there  proof  of  any  offer  having  been 
made  by  the  plaintiff  to  the  defendant  to  deliver  up  or  cancel  them.  This  ac- 
tion was  brought  to  recover  back  the  consideration  money,  upon  the  ground  of 
the  consideration  for  the  annuity  having  failed.  But  it  was  objected  at  the  trial 
that  the  action  of  assumpsit  would  not  lie,  the  plaintiff  still  having  his  remedy 
upon  the  bond  and  deed  :  and  on  this  ground  the  plaintiff  was  nonsuited.  But 
afterwards  a  motion  was  made  to  set  aside  the  nonsuit ;  and  the  counsel  for  the 
plaintiff  contended,  that  the  decision  of  the  court,  upon  the  application  of  the 
defendant,  was  not  merely  that  the  judgment  should  be  vacated,  but  that  the 
annuity  itself  should  be  set  aside  ;  that  the  defendant  then  made  his  election  to 
vacate  the  annuity  ;  and  having  at  least  withdrawn  from  the  plaintiff  one  of  his 
securities  for  it,  the  consideration,  which  was  paid  for  all  the  securities,  had 
failed,  and  therefore  he  was  entitled  to  recover  it  back.  The  court,  was  of  this 
opinion,  and  accordingly  set  aside  the  nonsuit,  and  granted  a  new  trial.  And 
IiOrd  Ellenborough  Ch.  J.  said,  "  The  argument  last  urged  is  very  forcible. 
The  plaintiff  contracted  for  one  entire  assurance,  consisting  of  several  securi- 
ties ;  and  he  has  a  right  to  have  that  assurance  entire,  or  to  have  back  his  mo* 
ney.  The  defendant  has  taken  away  one  of  his  securities,  and  therefore  the 
consideration  for  the  money  has  failed.  On  this  ground  I  think  the  present  ac- 
tion may  be  sustained  ;  and  to  be  sure  the  substantial  justice  of  the  case  is  all 
on  the  plaintiff's  side  ;  though  that  ought  never  to  be  attained  by  violating  the 
forms  of  law ;  but  on  the  latter  ground  I  think  it  may  be  attained  without  any 
such  violation." 

But  where  an  annuity  has  become  void  for  a  defect  in  the  memorial,  the 
grantee  cannot  maintain  an  action  for  money  had  and  received  to  recover  back 
the  consideration  money,  unless  the  annuity  has  been  set  aside  by  the  act  of 
the  court,  or  the  grantor  has  refused  to  re-execute  *valid  securities,  or  to 
pay  the  annuity.  Thus,  in  the  case  of  Wedded  v.  Lynam  and  Jones,(w)  which 
was  an  action  of  assumpsit  for  money  had  and  received,  brought  to  recover  the 
sum  of  570Z.  which  had  been  paid  by  the  plaintiff  to  the  defendants,  as  the 
consideration  of  an  annuity  granted  by  them  for  the  life  of  Jones.     The  me- 


(p)  6  East  Rep.  241.  (w)   1  Esp.  Rep.  309. 

41  *3«U 


331  On  Promises  To  Pay  Over  Money      [Part  II. 

morial  of  this  annuity  not  having  been  duly  registered,  in  pursuance  of  the 
stat.  17  Geo.  3.,  the  annuity  was  void  under  that  statute,  and  the  action  was 
brought  to  recover  back  the  consideration  money  paid  for  it.  The  plaintiff 
proved  the  payment  of  the  consideration  money.  The  counsel  for  the  defend- 
ant made  two  points  :  1st.  That  supposing  the  plaintiff  to  be  entitled  to  recov- 
er, the  defendant  was  entitled,  under  the  issue  in  the  cause,  to  an  allowance  of 
all  payments  made  on  account  of  the  annuity,  and  of  all  expences  incurred  on 
it;  and  Lord  Kenyan  Ch.  J.  ruled  that  he  was  so.  But,  2dly.,  he  contended 
that  this  annuity  having  become  void  by  the  act  of  the  plaintiff  himself,  and 
there  being  no  evidence  of  any  demand  of  the  arrears  of  the  annuity  from  the 
defendants,  and  a  refusal  by  them  to  pay  them,  or  any  application  to  them  to 
re-execute  the  securities,  which  they  might  have  done,  the  plaintiff  could  not 
raise  a  cause  of  action  by  his  own  act,  or  by  reason  of  his  own  negligence  or 
default.  The  counsel  for  the  plaintiff  answered,  that  the  securities  having  be- 
come void  by  act  of  law,  the  statute  having  declared  all  annuities  absolutely 
void,  the  memorials  of  which  did  not  comply  with  the  statute,  the  plaintiff  was 
at  liberty  immediately  to  have  recourse  to  his  action,  to  recover  back  the  con- 
sideration. But  Lord  Kenyon  Ch.  J.  said,  "  that  it  should  not  be  in  the  power 
of  the  grantee  of  an  annuity,  by  his  own  act  or  negligence,  to  rescind  the 
contract,  and  avoid  the  security  given,  at  his  option;  that  as  there  was  no  evi- 
dence of  any  application  to  the  defendants,  either  for  payment  of  the  annuity, 
or  to  re-execute  the  securities,  and  as  the  annuity  had  never  been  set  aside  by 
an  act  of  the  Court,  he  was  of  opinion  that  the  action  could  not  be  maintained." 
The  plaintiff  was  accordingly  nonsuited. 

So,  in  the  case  Richards  v.  Borrctt,(x)  which  was  also  an  action  of  assump- 
sit for  money  had  and  received,  it  appeared  in  evidence,  that  the  defendant  be- 
ing in  the  Fleet  Prison,  and  distressed  for  money,  had  applied  (by  means  of 
one  Bryant,  an  attorney,)  to  the  plaintiff  for  a  loan.  The  plaintiff  lent  him 
some  money,  and  took  from  him  a  bond  and  warrant  of  attorney,  to  secure  an 
annuity.  Shortly  after,  the  defendant  applied  through  the  same  channel  to  the 
plaintiff  to  borrow  more  money  ;  the  plaintiff  required  a  further  security  than 
a  bond  and  warrant  of  attorney  ;  and  the  defendant  deposited  with  him  the  lease 
of  a  farm  in  Kent,  which  he  represented  as  unincumbered ;  and  it  was  endeav- 
oured to  be  proved  that  he  meant  to  charge  this  real  property  with  payment 
*of  an  annuity  for  the  latter  sum  advanced  ;  but  the  defendant's  counsel  assert- 
ed that  it  was  only  deposited  with  a  view  to  secure  the  payment  of  the  rent  by 
the  tenant  in  discharge  of  the  annuity.  The  proof  not  coming  up  exactly  to 
that  point,  Lord  Kenyon  Ch.  J.  said,  "  It  had  been  held  in  equity  that  depositing 
all,  or  even  part  of  the  deeds  respecting  real  property,  implied  an  intention  of 
charging  the  real  estates,  and  gave  the  party  a  lien  upon  them  ;  and  that  as  this 
was  an  equitable  action,  he  would  hold  the  same  doctrine.  No  memorial  of  the 
first  annuity  had  been  registered,  nor  had  any  deed  to  charge  the  real  property 

(.r)  3  Esp  Rep.  102. 
♦332 


Chap.  4.]     Had  and  Received  to  the   Use  of  Another,  332 

with  the  second  annuity  been  registered ;  and  the  annuity  having  been  in  arrear, 
the  present  action  was  brought  to  recover  the  consideration  money."  No  ap- 
plication had  been  made  to  the  court  to  set  aside  the  first  annuity ;  and  for  the 
defendant  it  was  contended,  that  the  securities  were  only  voidable  ;  and  that 
being  still  in  existence,  the  present  action  could  not  be  maintained.  Lord  Ken- 
yon  Ch.  J.,  thought  that  the  objection  was  wejl  founded  with  respect  to  one  an- 
nuity;  and  said,  "The  party  should  be  called  upon  to  complete  the  securities; 
and  those  for  part  having  been  completed,  as  far  as  the  party  had  been  called 
upon,  they  must  be  considered  as  valid,  until  set  aside  by  the  court :  but,  with 
respect  to  the  other,  the  defendant  not  having  done,  or  being  unable  to  do  that 
which  he  had  undertaken,  namely,  to  charge  the  real  estate,  the  plaintiff  was 
entitled  to  recover  the  consideration  money  of  that  annuity." 

Where  an  annuity  has  been  paid  for  some  time,  and  then  rescinded  by 
agreement  of  the  parties,  on  account  of  the  deeds  not  having  been  properly 
enrolled,  the  purchaser  is  entitled  to  recover  back  the  whole  of  his  purchase 
money.  Thus,  in  the  case  of  Beauchamp  v.  Borrctt.,(y)  the  plaintiff  having 
purchased  an  annuity  of  the  defendant,  which  was  void  on  account  of  the  deeds 
not  being  enrolled,  it  was  agreed,  after  two  yearly  payments  had  been  made, 
that  the  annuity  should  be  rescinded  ;  and  that  the  defendant  should  pay  to  the 
plaintiff  the  money  paid  for  the  purchase  of  the  annuity,  with  interest  from  the 
last  yearly  payment.  The  sum  paid  for  the  purchase  was  6001.  The  annuity 
was  100/. per  annum;  and  the  only  question  in  the  cause  was,  whether,  under 
this  agreement,  (which  was  contained  in  a  letter  from  the  defendant)  the 
plantifT  was  entitled  to  recover  the  whole  600/.  with  interest  from  the  time  of 
the  last  payment,  or  whether  the  200/.  which  had  been  paid  should  be  deducted. 
Lord  Kcnyon  Ch.  J.  was  of  opinion,  that  both  under  the  agreement,  and  ac- 
cording to  the  justice  of  the  case,  the  plaintiff  was  entitled  to  recover  the  whole 
600/.  and  interest,  from  the  time  of  the  last  yearly  payment ;  and  the  jury  gave 
damages  accordingly. 

But  where  an  annuity  has  been  set  aside  on  account  of  a  defective  'registry, 
and  the  grantee  brings  an  action  for  money  had  and  received,  to  recover  back 
the  consideration  money  paid  for  the  annuity,  the  grantor  may  set  off  the  pay- 
ments made  in  respect  of  such  annuity,  though  for  more  than  six  years,  unless 
the  plaintiff  reply  the  statute  of  limitations.  This  was  settled  in  the  case  of 
Hicks  v.  Hicks, (z)  which  was  also  an  action  of  assumpsit  for  money  had  and 
received,  to  recover  back  711/.,  the  consideration  money  paid,  many  years 
back,  for  an  annuity  granted  by  the  defendant  to  the  plaintiff ;  but  which  annu- 
ity, after  having  been  paid  several  years,  (more  than  six)  had  been  recently 
set  aside  by  the  court,  on  the  application  of  the  defendant,  for  a  defect  in  the 
memorial  of  registry.  The  defendant  pleaded  a  set-off  of  more  money  paid 
to  the  plaintiff's  use  than  was  due  to  him :  and  this    appeared  at  the  trial  to  be 


(y)  Peake's  Case,  N.  P.  109.  C.  reported  by  the  name  of  Hills  v.  Hills, 

(x)  3  East  Rep.  16.     4  Esp.  Rep.  196.  S. 

*333 


333  On  Promises  To  Pay  Over  Money        [Part  II. 

true,  provided  the  defendant  was  at  liberty  to  set  off  all  the  payments  which 
had  been  made  to  the  plaintiff  in  respect  of  the  annuity  for  more  than  six  years 
past  ;  which  Lord  Ellenborough  Ch.  J.  held  that  he  might,  the  plaintiff  not 
having  replied  the  statute  of  limitations  ;  upon  which  a  verdict  passed  for  the 
defendant.  And  the  Court  afterwards,  upon  a  motion  to  set  aside  the  verdict, 
confirmed  his  lordship's  opinion. 

So,  in  the  case  of  Water s  v.  Sir  William  Mansell,  Bart.,  (a)  it  was  deter- 
mined, that  to  entitle  the  grantee  of  an  annuity  to  recover  back  the  price,  as 
money  had  and  received,  it  is  sufficient  if  the  grantor  has  communicated  to 
the  grantee,  that  there  are  defects  in  the  memorial,  and  has  treated  for  a  com- 
promise on  the  ground  of  the  annuity  being  void,  although  the  grantee  neither 
demands  payment  of  the  arrears,  nor  tenders  new  securities,  nor  delivers  up 
the  old  ones  before  he  sues  ;  and  although  the  grantor  has  taken  no  active 
measures  to  set  aside  the  securities. 

In  the  case  of  Straton  v.  Raslall,(b)  it  was  determined,  that  a  person  who 
merely  lent  his  name  as  a  surety  for  the  due  payment  of  an  annuity,  and  who 
received  no  part  of  the  consideration  money,  is  not  liable  to  be  sued  for  any 
part  of  it,  after  the  annuity  deeds  have  been  set  aside,  though  he  may  have 
formally  acknowledged  the  receipt  of  the  money  on  the  back  of  the  deeds. 

10.  OF  FEES  RECEIVED  BY  COUNSEL,  &c. 

No  action  will  lie  to  recover  back  a  fee  given  to  a  barrister  to  argue  a  cause 
which  he  did  not  attend.  This  was  determined  in  the  case  of  Turner  v.  Phil- 
lips, (c)  which  was  an  action  of  indebitatus  assumpsit  for  money  had  and  re- 
ceived. The  plaintiff  being  a  party  in  a  former  cause,  had  *given  the  defen- 
dant a  brief  to  attend  as  one  of  his  counsel  on  the  trial  of  that  cause  ;  and  the 
defendant  not  having  attended  the  trial,  the  present  action  was  brought  to  re- 
cover back  the  fee  given  to  him  on  that  occasion. 

Lord  Kenyon  Ch.  J.  advised  an  agreement  between  the  parties,  saying,  that 
whether  Mr.  Phillips  would  choose  to  return  the  fee  or  not,  was  for  his  own 
consideration,  but  if  the  cause  was  to  proceed  he  should  feel  himself  obliged 
to  interpose,  and  the  parties  might  apply  to  the  court  if  they  were  dissatisfied 
with  his  opinion.  His  lordship  alluded  to  the  case  of  Charley  v.  Bolcot,(d) 
lately  decided,  and  mentioned  the  general  opinion  of  the  profession,  that  the 
fees  of  barristers  and  physicians  were  as  a  present  by  the  client,  and  not  a  pay- 
ment or  hire  for  their  labour.     The  cause  was  accordingly  settled  out  of  Court. 

11.  OF  PREMIUMS  RECEIVED  ON  MARINE  INSURANCES. 

In  cases  of  insurance,  the  risk  or  peril  insured  against  is  the  consideration 
for  which  the  premium  is  paid.     But  where  no  risk  has  been  run,  the  consider- 


(«)  3  Taunt.  56.  (c)  Pcake's  Cas.  N.  P.  122. 

(b)  2  Term  Rep.  36fl.  (J)  4  Term  Rep.  317. 

*334 


Chap.  4.]    Had  and  Received  to  the  Use  of  Another.     334 

ation  for  the  premium  fails,  and  an  action  of  indebitatus  assumpsit  will  in  gen- 
eral lie  to  recover  it  back  from  the  underwriter.  And  the  reason  given  is,  that 
a  policy  of  insurance  is  a  contract  of  indemnity ;  the  underwriter  receives  the 
premium  for  running  the  risk  of  indemnifying  the  insured  ;  and  therefore  if  he 
run  no  risk,  to  whatever  cause,  except  fraud,  this  may  be  imputable,  the  consi- 
deration for  which  the  premium  was  paid  to  him  fails,  and  he  ought  to  return 
it.(e)  So,  if  the  contract  be  void  on  account  of  a  non-compliance  with  any 
warranty,  express  or  implied,  as  if  the  ships  do  not  sail  on  the  day  prescribed, 
or  do  not  depart  with  convoy,  or  be  not  sea-worthy,  and  there  be  no  fraud  im- 
putable to  the  insured,  he  shall  be  entitled  to  a  return  of  premium,  because  the 
contract  never  attached,  and  the  risk  therefore  never  commenced,  (f) 

So,  if  the  insurance  be  upon  a  voyage  which  is  divisible  into  several  distinct 
risks,  which  are,  in  effect,  several  distinct  voyages,  the  premium  may  be  appor- 
tioned according  to  these  several  risks ;  and  in  case  one  or  more  of  those  risks 
should  not  have  been  commenced,  the  proportion  of  premium  applicable  to 
those  parts  shall  be  returned. (g)  But  if  the  risk  be  entire,  and  be  once  com- 
menced, it  is  a  general  rule,  that  there  shall  be  no  return  of  premium.  And 
the  shortness  of  the  time  when  the  thing  insured  was  put  in  risk,  affords  no 
ground  for  a  return  of  any  part  of  the  premium ;  for  it  becomes  the  absolute 
property  of  the  insurer  the  moment  the  risk  commences,  though  it  should  cease 
the  moment  after.  (A) 

So,  if  where  the  insurance  is  for  a  term  specified  in  the  policy,  and  for  *one 
entire  premium,  if  the  risk  be  begun,  and  an  event  happen  immediately  after, 
which  determines  the  contract,  there  shall  be  no  return  of  premium,  (i) 

It  is  observed,(A)  that  clauses  are  frequently  inserted  in  policies  of  insurance 
that,  upon  the  happening  of  a  certain  event,  or  the  performance  of  some  stipu- 
lation, the  underwriter  shall  return  a  part  of  the  premium  ;  and  in  such  a  case, 
if  the  event  happens,  or  the  thing  stipulated  be  performed,  the  insured  shall  be 
entitled  to  the  return  of  premium  agreed  upon. 

And  as  a  general  rule  it  is  said,(*)  that  if  through  a  mistake,  misinformation, 
or  any  other  innocent  cause,  an  insurance  in  a  single  policy  be  made  without 
any  interest  whatsoever  in  the  thing  insured,  or  to  a  much  larger  amount  than 
its  real  value ;  in  the  one  case  the  insurer  shall  return  the  whole  premium  ;  in 
the  other  he  shall  return  in  the  proportion  which  the  true  value  bears  to  the 
sum  insured.  Thus,  if  a  man,  supposing  he  has  goods  on  board  a  certain  ship 
to  the  value  of  1000/.,  insure  to  that  amount,  but  afterwards  find  either  that  he 
has  no  goods  at  all  on  board,  or  that  he  has  goods  only  to  the  amount  of  half 
the  insurance  :  in  the  one  case  he  would  be  entitled  to  a  return  of  the  whole 
premium ;  in  the  other,  to  a  return  of  the  moiety.  And  all  the  underwriters 
upon  a  policy  in  which  the  effects  are  insured  beyond  their  value,  must  bear 
any  loss  that  may  happen,   and  repay  a  part  of  the  premium,  in  proportion  to 


(e)  Cowp.  6GS.     Per  Lord  Mansfield.  (t)  Cowp.  666. 

(/)  2  Marsh,  on  Insurance,  G51.  2  Ed.  (/.-)  2  Marsh.  639. 

(ff)  SBur.  1237.  (*)  Ibid.  669. 

Lh)  2  Marsh.  661.  V  ' 

*335 


835  On  Promises   To  Pay  Over  Money       [Part  II. 

their.rcspective  subscriptions  without  regard  to  the  priority  of  their  dates.  But 
upon  a  wager  policy,  which  by  the  stat.  19  Geo.  2  c.  37.  is  illegal  and  void, 
the  insured  cannot  recover  back  the  premium  after  the  risk  has  been  run  :  for  he 
shall  not  after  thus  taking  the  chance  of  a  loss,  and  of  obtaining  from  the  gener- 
osity at  least  of  the  underwriters,  the  sum  insured,  be  permitted  to  recover  back 
the  premium. (/)  So,  where  the  insurance  is  upon  an  illegal  trading,  the  insured 
cannot  recover  back  his  premium,  (m) 

12.  OF  MONEY  PAID  AND  RECEIVED  UNDER  A  MISTAKE  ;  OR  IN  IGNO- 
RANCE BOTH  OF  THE  LAW  AND  OF  THE  FACT  :  AND  OF  VOLUN- 
TARY PAYMENTS  MADE  BY  A  PARTY  EITHER  WITH  FULL  KNOW- 
LEDGE OF  ALL  THE  CIRCUMSTANCES  ;  OR,  HAVING  THE  MEANS  OF 
SUCH  KNOWLEDGE  AT  THE  TIME,  OMIT  MAKING  DUE  ENQ.UIRY, 
&c.  INTO  THE  CIRCUMSTANCES,  UNDER  WHICH  THE  CLAIM  IS 
MADE. 

If  a  person  pays  money  to  another  under  a  mere  mistake  of  fact,  or  in  igno- 
rance of  the  law,  and  without  full  knowledge,  or  having  the  *means  of  such 
knowledge,  of  the  circumstances  attending  the  claim,  an  action  of  indebitatus 
assumpsit  will  in  general  lie  to  recover  it  back,  [n)  So,  if  two  reckon  togeth- 
er, and  one  overpays  the  other,  indebitatus  assumpsit  lies  for  the  money  so 
paid.(o)  So,  where  goods  are  shipped  from  abroad,  consigned  to  a  merchant 
in  this  country,  the  freight  is  payable  according  to  their  net  we'ght  as  ascer- 
tained at  the  king's  landing  scales,  and  not  according  to  the  weights  expressed 
in  the  bill  of  lading,  unless  there  be  a  special  contract  so  to  pay  for  them ;  and 
therefore  if  the  consignee,  in  order  to  get  the  goods  delivered  to  him,  pay  more 
than  the  net  weight  amounts  to,  he  may  recover  back  the  surplus  in  an  action  for 
money  had  and  received,  (p) 

But  if  a  person  with  knowledge  of  the  facts,  though  under  a  mistake  as  to  the 
law,  pays  over  money  to  another,  who  claims  it  as  a  right,  he  cannot,  upon 
discovering  what  his  legal  right  was,  recover  it  back,  supposing  there  is  nothing 
against  conscience  in  the  other  party's  retaining  it.  This  point  was  very  fully 
discussed  and  determined  in  the  recent  case  of  Sir  Charles  Brisbane,  Knt.  v. 
Dacres,(q)  where  the  captain  of  a  king's  ship  having  brought  to  England  pub- 
lic treasure  upon  the  public  service,  and  treasure  of  individuals  in  his  ship  for 
his  own  emolument ;  and  received  freight  for  both,  and  having  paid  over  one 
third  of  it,  according  to  a  usage  heretofore  established  in  the  navy,  to  the  admi- 
ral under  whose  command  he  sailed.  But  afterwards  discovering  that  the  law 
does  not  compel  captains  to  pay  to  admirals  one-third  of  the  freight ;  the  cap- 
tain brought  an  action  for  money  had  and  received,  to  recover  it  back  from  the 
admiral's  executrix:  the  majority  of  the  Court  of  Common  Pleas  (Mr.  Justice 


(0  Lowry  v.  Bourdieu,  Doug.  451 .  showing  in  what  instances  the  Premium  may 

(m)  2  Marsh,  on  Insurance,  645,  64G.  And  or  may  not  be  recovered  back. 

see  more  at  large  on  the  subject  of  a  Return  (n)    1  Salk.  22.     2  Bl.  Rep.  825. 

of  Premium,  chap.  15.  in  the  same  book,  and  (o)  2  Ld.  Raym.  1217. 

Park  on  Insurance,  chap.   19.  where  all  the  (p)    Gereddes  v.  Domson,  Holt  N.  1 .  34b. 

cases  are  collected  and   brought    together,  (g)  5  Taunt.  143. 


* 


33G 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.      336 

Chambrc  dissenting)  determined,  that  he  could  not  recover  back  the  private  freight, 
because  the  whole  of  that  transaction  was  illegal  ;  nor  the  public  freight,  because 
he  had  paid  it  with  full  knowledge  of  the  facts,  although  in  ignorance  of  the  law  ; 
and  because  it  was  not  against  conscience   for  the  executrix  to  retain  it.     The 
Chief  Justice    Gibbs,  in  delivering  his  opinion,  took  a  very  elaborate  review  of 
the  cases  on  this  subject,  and  said,  "  where  a  man  demands  money  of    another 
as  a   matter  of  right,  and  that  other,  with  a  full  knowledge  of  the  facts  upon 
which  the  demand  is   founded,  has  paid  a  sum,  he  never  can  recover  back  the 
sum  he  has  so  voluntarily  paid.     It  may  be,  that  upon  a  further  view  he  may 
form  a  different  opinion  of  the  law  ;  and  it  may  be,  his  subsequent  opinion  may 
be  the  correct  one.  If  we  were  to  hold  otherwise,  I  think  many  inconveniences  may 
arise  ;  there  are  many  doubtful  questions  of  law  ;  and  when  they  arise,  the  defen- 
dant has  an  option,  either  to  litigate  the  question,  or  to  submit  to  the  demand  and 
pay  the  money.     I  think  that  *by  submitting  to  the  demand,  he  that  pays  the  mo- 
ney gives  it  to  the  person  to  whom  he  pays  it,  and  makes  it  his,  and  closes  the 
transaction  between  them.     He  who  receives  it,  has  a  right  to  consider  it  as  his 
without  dispute  :  he  spends  it  in  confidence  that  it  is  his ;  and  it  would  be  most 
mischievous  and  unjust  if  he  who  has  acquiesced  in  the  right  by  such  voluntary 
payment,  should  be   at  liberty,  at  any  time  within  the  statute  of  limitations,  to 
rip  up  the  matter  and  recover    back  the  money.     He  who   received  it,  is  not  in 
the  same  condition :  he  has  spent  it  in  the  confidence  it  was  his,   and  perhaps 
has  no  means  of  repayment.     I  am  aware  cases  were  cited  at  the  bar  in  which 
were  dicta  that  sums  paid  under  a  mistake  of  the   law  might  be  recovered  back, 
though  paid  with  a   full  knowledge  of  the   facts  ;  but  there  are  none    of  these 
cases  which  may  not  be    supported  on  a  much    sounder   ground.     I    think  the 
dicta  that    go  begond  it,  are  not  supported    or  called  for  by    the   facts    of  the 
cases.     Bilbic  v.  Lumlcy,{r)   I  think  is  a  decision  to  that  effect.     And  for  these 
reasons,   I  am    of  opinion  the  plaintiff  is    not  entitled  to   recover."     Chambre 
Just,  said,  "  I  concur  in  thinking  the  money  is  not  recoverable  on  the  payment 
of  the  private  freight,  whether  the  carriage  of  the  treasure  be    considered  as  a 
legal  or   as  an  illegal  transaction.     If  illegal,    clearly  the   money  cannot    be 
recovered  ;  if  it  be  legal,  the  right  to  carry  it  must  arise  from  the  permission  of 
government ;  and  as  the  practice  has   been  uniform  for  the    admiral  to  receive 
his  third   part,  we  must  take  it    that  it   is   a  part  of  the  practice,   and  that  the 
whole  practice  has  had  that  assent  of  the  government.     As   to  the   freight  for 
the  carriage  of  the  public  property,  I  think  it  stands  on  a  different  ground ;  and 
that  the  action  is  maintainable.     The  plaintiff  had  a  right  to  it,  and  the  defen- 
dant in  conscience  ought  not  to  retain  it.     The  rule  is,  that  when  he  cannot  in 
conscience  retain  it,  he  must  refund  it,  if  there  is  nothing  illegal  in  the  transac- 
tion :  the  case  is  different  where  there  is  an  illegality.     I  think  there  are  suffi- 
cient authorities  to  say  this  person  has  paid  this  money  in  his  own  wrong,  and 
that  it  may  be  recovered  back.     In  the  case  of  Bilbie  v.  Lumley,  there  was  a 


(r)  Post.  338. 

•337 


387  On  Promises  To  Pay  Over  Money       [Part  11. 

letter  said  to  have  been  concealed  which  ought  to  have  been  disclosed  ;  this 
letter  was  shewn  to  the  under-writers,  and  they,  after  reading  it,  thought  fit  to 
pay  the  money.  Now  there  the  maxim  volenti  non  fit  injuria  applies.  In  that 
case  all  argument  was  prevented  by  a  question  put  by  the  Court  to  the  counsel. 
I  am  not  aware  of  any  particular  danger  in  extending  the  law  in  cases  of  this 
sort,  for  they  are  for  the  furtherance  of  justice  ;  neither  do  I  see  the  applica- 
tion of  the  maxim  used  by  Buller  Just,  in  the  case  of  Loicry  v.  Bourdicu,  and 
cited  by  the  Court  in  Bilbiev.  Lumley,  ignorant  ia  juris  non  excusat ;  it  applies 
only  to  cases  of  delinquency  where  an  excuse  is  to  be  made.  I  have  searched 
far  to  see  if  I  could  find  any  instance  of  *similar  application  of  this  maxim,  but 
I  can  find  none  in  which  this  has  been  so  applied.  I  cannot  see  how  it  applies 
here.  In  Loicry  v.  Bourdieu,  the  decision  turned  on  the  transaction  being  ille- 
gal, and  it  being  illegal,  the  maxim  applied  in  pan  delicto  potior  est  conditio  de- 
fendentis.  In  the  case  of  Bize  v.  Dickaso?i,(s)  Lord  Mansfield  held,  that  if  a 
person  has  paid  that  which  in  conscience  he  ought,  but  the  payment  of  which 
could  not  be  compelled,  it  shall  not  be  recovered  back  in  an  action  for  money 
had  and  received ;  but  that  where  a  man  has  paid  money  under  a  mistake, 
which  he  was  neither  bound  in  law,  nor  called  on  in  conscience  to  pay,  he  may 
recover  it  back.  Now,  the  case  against  the  plaintiff  is  not  so  strong  as  it  has 
been  stated.  I  do  not  find  in  the  case  that  any  demand  was  ever  made  of  him, 
or  any  question  mooted,  upon  which  he  thought  it  better  to  submit,  than  to  liti- 
gate the  point.  No  option  ever  presented  itself  to  him  ;  and  the  maxim  volen- 
ti non  fit  injuria  does  not  apply.  It  appears  to  me  that  the  justice  of  the  case 
with  respect  to  the  freight  of  the  public  treasure  is  entirely  with  the  plaintiff." 

Upon  the  subject  of  voluntary  payments,  the  rule  of  law  is,  that  where  money 
is  paid  with  full  knowledge,  or  with  full  means  of  knowledge  of  the  circumstan- 
ces attending  the  demand,  the  party  is  not  entitled  to  recover  back  such  pay- 
ment, though  made  without  sufficient  consideration.  But  if  the  money  be  paid 
without,  such  full  knowledge,  or  means  of  knowledge,  or  if  the  party  be  induc- 
ed to  pay  it  under  false  representations,  he  may  recover  back  money  paid  under 
such  circumstances. (t)  Thus,  in  the  case  of  Bilbie  v.  Lu?nlcy  and  others,  (u) 
which  was  an  action  of  assumpsit  for  money  had  and  received,  brought  by  an 
underwriter  upon  a  policy  of  insurance,  in  order  to  recover  back  ]  001.  which 
he  had  paid  upon  the  policy  as  for  a  loss  by  capture  to  the  defendants,  the 
assured.  The  ground  on  which  the  action  was  endeavoured  to  be  sustained 
was,  that  the  money  was  paid  under  a  mistake,  the  defendants  not  having,  at 
the  time  of  the  insurance  effected,  disclosed  to  the  underwriter  (the  present 
plaintiff)  a  material  letter  which  had  before  been  received  by  them  relating  to 
the  time  of  sailing  of  the  ship  insured.  It  was  not  denied  that  the  letter  was 
material  to  be  disclosed  ;  but  the  defence  rested  on  before  the  Court,  and  at  the 
trial,  was,  that   before  the  loss    on  the   policy  was    adjusted,   and   the   money 


(*)  !  Term   Rep.  286.  (u)  2  East  Rep.  469. 

(0  Per  Dallas  Ch.  J.  1  Brod.  &  Bing.  291. 

*338 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.    338 

paid  by  the  present  plaintiff,  all  the  papers  had  been  laid  before  the  underwrit- 
ers ;  and  amongst  others  the  letter  in  question  :  and  therefore  it  was  contended 
at  the  trial,  before  Rooke  J.  at  York,  that  the  money  having  been  paid  with 
full  knowledge,  or  with  full  means  of  knowledge  of  all  the  circumstances 
could  not  now  be  recovered  back  again.  On  the  other  hand,  it  was  insisted 
that  it  was  sufficient  to  sustain  the  action,  that  the  money  *had  been  paid 
under  a  mistake  of  the  law ;  the  plaintiff  not  being  apprised  at  the  time  of  the 
payment,  that  the  concealment  of  the  particular  circumstance  disclosed  in  the 
letter  kept  back  was  a  defence  to  any  action  which  might  have  been  brought 
on  the  policy :  and  the  learned  judge  being  of  that  opinion,  the  plaintiff  ob- 
tained a  verdict.  But,  afterwards,  upon  a  motion  for  a  new  trial,  the  Court  of 
King's  Bench  determined  that  the  plaintiff  was  not  entitled  to  recover  back 
the  money  ;  it  having  been  paid  voluntarily  with  a  full  knowledge  of  the  facts 
of  the  case:  therefore  the  verdict  was  set  aside.  And  Lord  Ellcnborough 
Ch.  J.  asked  the  plaintiff 's  counsel  whether  he  could  state  any  case,  where  if 
a  party  paid  money  to  another  voluntarily,  with  a  full  knowledge  of  all  the 
fa^ts  of  the  case,  he  could  recover  it  back  again  on  account  of  his  ignorance 
of  the  law?  No  case  being  cited,  his  Lordship  said,  "  The  case  of  Chatfield  v. 
Paxton(w)  is  the  only  one  I  ever  heard  of,  where  Lord  Kenyon  at  Nisi  Prius 
intimated  something  of  that  sort  :  But  when  it  was  afterwards  brought  before 
this  court,  on  a  motion  for  a  new  trial,  there  were  some  other  circumstances  of 
fact  relied  on ;  and  it  was  so  doubtful  at  last  on  what  precise  ground  the  case 
turned,  that  it  was  not  reported.  Every  man  must  be  taken  to  be  cognizant 
of  the  law;  otherwise  there  is  no  saying  to  what  extent  the  excuse  of  igno- 
rance might  not  be  carried.     It  would  be  urged  in  almost  every  case." 

So,  where  a  man  has  paid  a  debt  which  would  otherwise  have  been  barred 
by  the  statute  of  limitations ;  or  a  debt  contracted  during  his  infancy,  which 
in  justice  he  ought  to  discharge,  though  the  law  would  not  have  compelled  the 
payment,  yet  the  money  being  paid,  it  will  not  oblige  the  payee  to  refund  it. 
But  where  money  is  paid  under  a  mistake,  which  there  was  no  ground  to  claim 
in  conscience,  the  party  may  recover  it  back  again  by  this  kind  of  action,  (a;) 

13.  OF  COMPULSORY  PAYMENTS  MADE  EITHER  UPON  A  PLEDGE  OF 
GOODS,  OR  FOR  A  FINE  UPON  ADMITTANCE  ;  OR  UNDER  LEGAL 
PROCESS  ;  OR  UPON  A  THREAT  OF  AN  ACTION,  OR  DISTRESS,  &c  ; 
OR  UNDER  MERE  COLOR  OF  PROCESS. 

1.  Of  Excessive  Interest  Paid  upon  a  Pledge  of  Goods.  J— If  an  un- 
due advantage  be  taken  of  a  person's  situation,  and  money  be  obtained  from  him 
by  compulsion,  such  money  may  be  recovered  back  in  an  action  for  money  had 
and  received.  Thus,  in  the  case  of  Astley  v.  Reynolds,{y)  where  the  plaintiff 
having  in  the  month  of  August  pawned  some  goods  with  the  defendant  for  20/. 


(to)  2  East  Rep.  471.  n.  a.  2  Bur.  1012. 

(z)  1    Term    Rep.    236.     2  Bl.  Rep.  825.         (y)  Stra.  915. 

42  «389 


340  On  Promises  To  Pay  Over  Money     [Part  II. 

without  making  any  agreement  for  interest,  *went  in  the  October  following 
to  redeem  them,  when  the  defendant  insisted  on  having  10/.  as  interest  for  the 
20?.  The  plaintiff  tendered  him  the  20/.  and  41.  for  interest,  knowing  the  same 
to  be  more  than  the  legal  interest  amounted  to ;  the  defendant  still  insisted  on 
having  10/.  as  interest,  whereupon  the  plaintiff  finding  that  he  could  not  other- 
wise get  his  goods  back,  paid  the  defendant  the  sum  which  he  demanded,  and 
brought  an  action  for  the  surplus  beyond  the  legal  interest,  as  money  had  and 
received  to  his  use  ;  the  Court  held,  that  the  action  would  well  lie,  for  it  was 
a  payment  by  compulsion,  and  the  plaintiff  might  have  had  such  an  immediate 
want  of  his  goods  that  an  action  of  trover  would  not  have  answered  his  pur- 
pose, and  the  rule  volenti  non  fit  injuria  holds  only  where  the  party  has  a  free- 
dom of  exercising  his  will. 

2.  Of  an  excessive  Fine  Paid  upon  admittance  to  Copyhold  premi- 
ses.] In  the  case  of  Leake  v.  Lord  Pigot,(z)  which  was  an  action  for  money  had 
and  received  by  the  defendant  for  plaintiff's  use.  On  the  trial  it  appeared  that 
the  plaintiff  had  purchased  of  one  Sansom  a  copyhold  estate  in  Patingham, 
which  was  defendant's  manor.  The  estate  was  let  at  a  gross  rent  of  60/. 
per  annum,  landlord  paying  landtax,  chief  rent,  &c.  The  plaintiff  applied 
at  the  next  manor  court  to  be  admitted,  and  tendered  120/.  for  the  fine  (two 
years'  rent)  saying  that  no  lord  of  a  manor  had  a  right  to  more  than  two  years' 
value  for  a  fine.  Stevens  (Lord  Pigot's  agent)  refused  to  admit  him  unless  he 
paid  10/.  per  cent,  on  the  purchase  money  (1650/.)  ;  he  said  he  durst  not  take 
the  sum  offered  by  plaintiff,  nor  would  he  suffer  Mr.  Jeffreys,  the  court-keeper, 
to  admit  plaintiff  without  payment  of  165/.  The  plaintiff  then  paid  the  mon- 
ey demanded  as  a  fine  in  order  to  procure  admission,  but  said  is  was  too  much 
money  ;  and  plaintiff  afterwards  applied  to  Lord  Pigot  himself,  and  to  his 
agent  in  town,  Mr.  Partington,  and  offered  to  refer  the  matter  of  the  fine  to 
counsel.  Lord  Pigot  said  he  would  not  return  any  part  of  the  fine  received,  nor 
would  he  leave  it  to  counsel.  The  defendant  at  the  trial,  insisted  that  10/.  per 
cent,  on  the  purchase  money  was  the  customary  fine  in  that  manor  ;  and  by 
estimating  the  estate,  which  was  100  acres,  at  16s.  6d.  per  acre,  made  the  two 
years'  value  amount  to  165/.  Yatfs  J.  said,  "  Fines  were  arbitrary  formerly,  the 
estate  being  held  at  the  will  of  the  lord  ;  but  the  law  having  now  drawn  the 
line,  and  copyhold  estates  being  permanent,  no  more  than  two  years'  value  can 
be  taken.  The  lord  has  a  right  to  two  years'  real  intrinsic  value  of  the  land, 
and  is  not  to  be  prejudiced  by  any  collusive  lease.  It  was  necessary  for  the 
plaintiff  to  show,  that  he  did  not  pay  the  fine  voluntarily,  but  upon  compulsion. 
The  custom  to  take  10  per  cent,  on  the  purchase  money,  be  it  of  ever  so  long 
a  continuance,  cannot  bind  ;  the  law  having  fixed  the  rate  in  another  manner. 

*3.  Of  Money  Paid  under  legal  Process,  &c] — Where  money  has  been 
recovered  by  the  judgment  of  a  court  having  competent  jurisdiction,  the  matter 
can  never  be  brought  over  again  by  a  new  action  :  for  until  the  judgment  is  set 


(s)  Sel.Ni.  Pri.  87.MSS. 
>3-10  *341 


Chap.  1.]     Had  and  Received  to  the   Use  of  Another.    341 

aside  or  reversed,  it  is  conclusive,  as  to  the  subject  matter  of  it,  to   all  intents 
and  purposes,  (a)   Therefore,  money  paid  under  the  compulsion  of  legal  process, 
though  it  be  afterwards  discovered  not  to  have  been  due,  cannot  be  recovered 
back.     Thus,  in  the    case  of  Mar riot  v.  Hampton, (b)  where  it  appeared,  that 
the  defendant  formerly  brought  an  action  against  the  present  plaintiff  for  goods 
sold,  for  which  the   plaintiff  had  before  paid,  and  obtained  the   defendant's  re- 
ceipt ;  but  not  being  aide  to  find  the   receipt  at  that   time,  and  having  no  other 
proof  of  the  payment,  he  could  not  defend  the  action,  but  was  obliged  to  submit 
and  pay  the  money  again,  and  he  gave  a  cognovit  for  the  costs.     The  plaintiff 
afterwards  found  the  receipt,  and  brought  this  action  for  money  had  and  receiv- 
ed in  order  to  recover  back  the  amount  of  the  sum  so  wrongfully  enforced  in 
payment.     But  Lord  Kenyan  Ch.  J.  was  of  opinion  at  the  trial,  that  after  the 
money  had    been  paid   under    legal   process,  it   could  not  be  recovered  back 
again,  however  unconscientiously  retained  by  the  defendant. 

So,  where  an  attorney  brought  an  action  against  his  client  for  the  amount  of 
his  bill  of  costs,  which  the  client  paid  ;  but  afterwards  had  the  bill  taxed  by  the 
proper  officer  ;  and  upon  taxation,  one  half  of  the  charges  were  struck  out  and 
disallowed ;  upon  which  the  client  brought  an  action  of  indebitatus  assumpsit 
for  money  had  and  received  against  the  attorney,  to  recover  back  the  amount  so 
deducted  and  disallowed.  But  it  was  holden,  that  such  an  action  would  not  lie  ; 
the  money  having  been  paid  under  the  compulsion  of  legal  process,  and  the  cli- 
ent not  having,  as  he  might  have  done,  the  bill  taxed  pending  the  action  :(c) 
the  plaintiff  was  accordingly  nonsuited.  A  motion,  however,  was  afterwards 
made  for  a  rule  to  set  aside  the  nonsuit,  and  for  a  new  trial ;  but  Lord  Kcnyon 
Ch.  J.  said,  "  I  am  afraid  of  such  a  precedent.  If  this  action  could  be  maintain- 
ed I  know  not  what  cause  of  action  could  ever  be  at  rest.  After  a  recovery  by 
process  of  law  there  must  be  an  end  of  litigation,  otherwise  there  would  be  no 
security  for  any  person.  I  cannot  therefore  consent,  even  to  grant  a  rule  to 
show  cause,  lest  it  should  seem  to  imply  a  doubt.  It  often  happens  that  new 
trials  are  applied  for  on  the  ground  of  evidence  supposed  to  have  been  discov- 
ered after  the  trial  ;  and  they  are  as  often  refused :  but  this  goes  much  further." 
The  rule  was  accordingly  refused. 

So,  in  the  case  of  Brown  v.  MKinnally,{d)  which  was  an  action  of  assu?np- 
sit  for  money  had  and  received.  The  plaintiff  and  defendant  *being  in  the  same 
line  of  business,  entered  into  an  agreement  by  which  the  defendant  agreed  to 
sell  the  plaintiff  all  his  old  iron,  except  bushel  iron,  which  was  of  an  inferior 
quality,  at  9/.  per  ton.  The  iron  he  delivered  was  mixed  iron  of  an  inferior 
value,  being  part  bushel  iron,  and  charged  the  full  value  for  the  best  sort :  the 
plaintiff  objecting  to  the  charge,  the  now  defendant  brought  an  action  for  it. 
The  plaintiff  paid  the  full  demand  so  made  on  him,  at  the  same  time  telling  the 
defendant,  that  he  did  it  without  prejudice,  and  meant  to  bring  an  action  to  re- 


(«)  Per  Lord  Mansfield,  3  Bur.  1009.  (c)  Gower  v.  Popkin,  2  Stark.  85. 

(6)  7  Term    Rep.  269.  2  Esp.  546.  S.C.         (rf)  1  Esp.  Rop.  279. 
Vide  1  Vin.  Abr.  269. 


'311 


342  On  Promises  To  Pay  Over  Money  [Part  II. 

cover  back  the  overplus  so  paid  :  and  this  action  was  accordingly  brought 
for  that  purpose.  But  Lord  Kenyan  said,  "  That  such  an  action  could  not  be 
maintained.  That  to  allow  it  would  be  to  try  every  such  question  twice,  for 
that  the  same  legal  ground  that  would  entitle  the  plaintiff"  to  recover  in  the  pres- 
ent action,  would  have  been  a  good  defence  to  the  action  brought  against  him 
by  the  present  defendant ;  at  which  time,  and  in  which  manner  he  should  have 
proceeded :  that  money  paid  by  mistake  was  recoverable  in  assvmpsit,  but 
here  it  was  paid  voluntarily,  and  so  could  not  be  recovered  under  the  circum- 
stances of  this  case." 

It  has,  however,  been  determined,  that  where  money  was   recovered  upon  a 
judgment  of  a  court  of  conscience,  in  consequence  of  a  material  part  of  the  de- 
fendant's case  having  been  rejected,  which  could  not  be  gone  into  in  that  court, 
though  from  which  it  plainly  appeared,  that  the  plaintiff  ought  not  in  conscience 
and  equity  to  have  recovered  the  money  ;  the  judgment  in  such  case  is  not  con- 
clusive,   but  the    party    paying  the    money    under  it,    may    recover  it    back 
again  by  action    of   indebitatus  assumpsit.      Thus,   in    the    case   of    Moses  v. 
Macferlan,(e)  which  was  an  action  of  indebitatus  assumpsit  for  money  had  and 
received.     The  case,  as  it  came  out  in  evidence  at  the  trial,   was  as  follows  : 
Moses  (the  plaintiff)  had  indorsed  to  the   defendant,  Macferlan,  four    several 
promissory  notes  made  to  Moses  himself,  by  one  Chapman  Jacob,  for  30.?.  each, 
for  value  received,  bearing  date  7th  of  November,  1758  :  and  that  this  was  done 
in  order  to  enable  the  defendant,  Macferlan,  to  recover  the  money  in  his  own 
name,  against  Chapman  Jacob.      But  previous  to  the  now  plaintiff's   indorsing 
these  notes,  Macferlan  assured  him,   "  that  such  his  indorsement  should  be   of 
no  prejudice  to  him  :"  and  there  was  an  agreement  signed  by  Macferlan,  where- 
by he  (amongst  other  things)  expressly  agreed,  "  that  Moses  should  not  be  lia- 
ble to  the  payment  of  the  money,  or  any  part  of  it ;  and  that  he   should  not  be 
prejudiced,  or  be  put  to  any  costs,  or  any  way  suffer  by  reason   of  such  his  in- 
dorsement."    Notwithstanding   which  express    condition    and  agreement,   and 
contrary   thereto,   the    present  defendant,   Macferlan,   summoned  the   present 
plaintiff,  "* Moses,  into  the  Court  of  Conscience,  upon  each  of  these  four  notes, 
as  the  indorser  thereof  respectively,  by  four  separate  summonses.     Whereupon 
Moses,  (by  one  Smith,  who  attended  the  Court  of  Conscience,  at  their  second 
court,  as  solicitor  for  him  and  on  his  behalf,)    tendered  the   said   indemnity  to 
the  Court  of  Conscience,  upon  the  first  of  the  said  four  causes ;  and  offered  to 
give  evidence  of  it,  and  of  the  said  agreement,  by  way  of  defence  for  Moses  in 
that  Court.     But  that  Court   rejected  this  defence,  and  refused  to  receive  any 
evidence  in  proof  of  this   agreement  of  indemnity,  thinking  that   they  had  no 
power  to  judge  of  it ;  and  gave  judgment  against  Moses,  upon  the  mere  foot  of 
his  indorsement,  (which  he  himself  did  not  at  all  dispute,)  without  hearing  his 
witnesses  about  the  agreement,  that  he  should  not  be  liable  :  for  the  commis- 


(e)  2  Bar.  1005.  1  Bl.  Rep.  219.  S.  C.  this  case  did  not  satisfy  Westminster  Hal!  at 
But  see  2  H.  Bl.  416,  where  it  is  said  by  Eyre  the  time  ;  that  he  never  could  subscribe  trt 
Ch.  J.  "  That  the  judgment  pronounced  in     it  ;  it  seemed  to  him  to  unsettle  foundation1!/ 


* 


343 


Chap.  4.]  Had  and  Received  to  the   Use  of  Another.     343 

eioners  held  this  agreement  to  be  no  sufficient  bar  to  the  suit  in  their  Court,  and 
consequently  decreed  for  the  plaintiff  in  that  Court,  upon  the  undisputed  in- 
dorsement made  by  Moses.  This  decree  was  actually  pronounced  in  only  one 
of  the  four  causes  there  depending :  but  Moses's  agent  (finding  the  opinion  of 
the  commissioners  to  be  as  above-mentioned,)  paid  the  money  into  that  Court, 
upon  all  the  four  notes  ;  and  it  was  taken  out  of  Court  by  the  now  defendant, 
Macferlan,  (the  then  plaintiff  in  that  Court,)  by  order  of  the  commissioners. 

All  this  matter  appearing  in  evidence  at  the  trial,  there  was  no  doubt  but  that 
upon  the  merits,  Moses  was  entitled  to  recover  back  the  money,  and  accord- 
ingly a  verdict  was  given  for  him  ;  but  subject  to  the  opinion  of  the  Court  upon 
this  question,  whether  the  money  could  be  recovered  in  that  form  of  action, 
or  whether  an  action  ought  to  have  been  brought  upon  the  special  agreement 
only?  The  Court  were  unanimously  of  opinion,  that  the  gist  of  the  action  was 
that  the  defendant,  upon  the  circumstances  of  the  case,  was  obliged,  by  the  ties 
of  natural  justice  and  equity,  to  refund  the  money;  therefore,  that  the  plain- 
tiff might  elect  to  wave  any  demand  upon  the  foot  of  the  indemnity  for  the 
costs  he  had  been  put  to,  and  bring  his  action  of  indebitatus  assumpsit  to  recover 
the  6/.  which  the  defendant  had  unjustly  received.  Lord  Mansfield  Ch.  J.,  in 
delivering  the  opinion  of  the  Court,  said,  "  It  is  most  clear  that  the  merits  of 
a  judgment  can  never  be  over-haled  by  an  original  suit  either  at  law  or  in 
equity.  Till  the  judgment  is  set  aside  or  reversed,  it  is  conclusive,  as  to  the 
subject  matter  of  it,  to  all  intents  and  purposes.  *But  the  ground  of  this  action 
is  consistent  with  the  judgment  of  the  Court  of  Conscience ;  it  admits  the 
commissioners  did  right.  They  decreed  upon  the  indorsment  of  the  notes  by 
the  plaintiff:  which  indorsement  is  not  now  disputed.  The  ground  upon  which 
this  action  proceeds  was  no  defence  against  that  sentence.  It  is  enough  for  us, 
that  the  commissioners  adjudged  they  had  no  cognisance  of  such  collateral  mat- 
ter. We  cannot  correct  an  error  in  their  proceedings  ;  and  ought  to  suppose 
what  is  done  by  a  final  jurisdiction  to  be  right.  *But  we  think  the  commission- 
ers did  right  in  refusing  to  go  into  such  collatteral  matter.  Otherwise,  by  way 
of  defence  against  a  promissory  note  for  30.?.,  they  might  go  into  agreements 
and  transactions  of  a  great  value  :  and  if  they  decreed  payment  of  the  note, 
their  judgment  might  indirectly  conclude  the  balance  of  a  large  account.  The 
ground  of  this  action  is  not,  that  the  judgment  is  wrong  ;  but,  that  (for  a  rea- 
son which  the  now  plaintiff  could  not  avail  himself  of  against  that  judgment,) 
the  defendant  ought  not  in  justice  to  keep  the  money.  And  at  Guildhall,  I 
declared  very  particularly,  that  the  merits  of  a  question,  determined  by  the  com- 
missioners, where  they  had  jurisdiction,  never  could  be  brought  over  again  in 
any  shape  whatsoever.  Money  may  be  recovered  by  a  right  and  legal  judg- 
ment ;  and  yet  the  iniquity  of  keeping  that  money  may  be  manifest,  upon  grounds 
which  could  not  be  used  by  way  of  defence  against  the  judgment.  (Suppose 
an  indorsee  of  a  promissory  note,  having  received  payment  from  the  drawer 
(or  maker)  of  it,  sues  and  recovers  the  same  money  from  the  indorser,  who 
knew  nothing  of  such  payment.  Suppose  a  man  recovers  upon  a  policy  for  a 
ship  presumed  to  be  lost,  which  afterwards   comes  home :  or  upon  the  life  of 

*341 


344  On  Promises  To  Pay  Over  Money        [Part  II. 

a  man   presumed  to  be  dead,  who    afterwards  appears ;  or  upon  a  represen- 
tation of  a  risk  deemed  to  be  fair,   which  comes  out  afterwards   to  be  grossly 
fraudulent.     But  there  is  no   occasion    to  go  further :  for   the    admission  that, 
unquestionably,  an  action  might  be  brought  upon    the   agreement,    is   a   deci- 
sive answer  to  any  objection  from    the  judgment.     For  it  is  the    same  thing, 
as  to  the  force  and  validity  of  the  judgment,   and  it  is  just  equally  affected  by 
the  action,  whether  the  plaintiff  brings  it  upon  the  equity  of  his  case  arising 
out  of  the  agreement,  that  the  defendant  may  refund   the  money  he   received  ; 
or,  upon  the  agreement  itself,  that   besides   refunding  the  money,  he  may  pay 
the  costs  and  expences  the  plaintiff  was  put  to.     The  gist  of  this  kind   of  ac- 
tion is,  that  the  defendant,  upon  the   circumstances  of  the  case,  is   obliged  by 
the  ties  of  natural  justice  and  equity  to  refund  the  money.     Therefore,    we  are 
all  of  us  of  opinion,  that  the  plaintiff  might    elect  to    wave  any   demand  upon 
the  foot  of  the  indemnity,  for  the  costs  he   had  been  put  to  ;  and  bring  this  ac- 
tion to  recover  the  61,  which  the  defendant  got  and  kept  from  him  iniquitously." 
So,  where  an  action  is  brought,  and  the  money  is  paid  under  a  compromise, 
and  not  in  consequence  of  a  judgment  of  the  court ;  and  it  is  afterwards  disco- 
vered that  the  money  was  paid  by  mistake  or  deceit,  it  may  be  recovered  back 
by  action  of  indebitatus  assumpsit  for  money  had  and  received.     Thus,   in  the 
case  of  Cobden  v.  Kendrick,(f)  where  the  following   facts    appeared  :  an  ac- 
tion had  been  brought  some  time  before   by  the    present    defendant,    as  indor- 
see of  a  promissory   note  for  *150L  against  the  present  plaintiff  as  the  maker; 
in  which  cause  interlocutory  judgment  had  been  signed,   and   a  writ  of  inquiry 
executed  ;  after  which   the  cause  was  compromised  by   Cobden's   paying  part, 
and  giving  a  warrant  of  attorney  to  confess  judgment  for  the  residue  of  the 
150/.     And  in  the  interval,  between  the  time  when  the   warrant  of  attorney 
was  given,  and  the  time  when  the  money  became  due,  according  to  the   defea- 
zance  thereof,  Kendrick  told  Allen,  who  was   his  attorney  in  that  suit,  that  he 
was  glad  it  Mas  settled,  for  that  he   had  only   given  10/.  in  cash,  and  his  pro- 
missory note  for  it ;  and  that  he  knew  it  was  a  lottery  transaction.     This  ac- 
tion was  now  brought  to  recover  back  the   money  so  paid,   on  the  ground  of 
want  of  consideration  ;  and  in  proof  that   that  was  known  to   Kendrick  at  the 
time  he  took  the  note,  Allen  was  called  as  a  witness  to  speak  to  the   conversa- 
tion above  mentioned,  and  he  was  admitted,  after  argument  upon  his  incompe- 
tency ;  and  a  verdict  passed  for  the  plaintiff.     An  objection  was  also  taken  at 
the  trial,  that  this  action  was  in  effect  to   put  the  sum  in   litigation   a  second 
time,  which  had  been  recovered  in  the  former  action  by   Kendrick  against  Cob- 
den ;  but  Lord  Kenyan  Ch.  J.  over-ruled  it,  on  the  ground  that  the  money  had 
been  paid  under  a  compromise,  and  not  under  the  judgment  of  a  court. 

4.  Of  Money  Paid  under  a  Threat  of  Distress  for  Rent,  &c] — If 
a  landlord  threaten  to  distrain  either  for  more  rent  than  is  due,  or  for  a  greater 
rent  than  that  agreed  upon  ;  and  under  such  a  threat,  the  tenant  pays  the  rent 

(/)  4  Term  Rep.  431. 
#345 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.         345 

demanded,  he  cannot  recover  it  back,  for  he  should  then  have  made  his  stand, 
and  have  resisted  any  distress  which  the  landlord  might  have  made.  Thus,  in 
the  case  of  Knibbs  v.  Hall,(g)  which  was  an  action  of  assumpsit  for  use 
and  occupation  of  chambers.  The  defendant  pleaded  non  assumpsit,  with  a 
notice  of  set-off  for  money  had  and  received.  One  article  of  the  set-off,  which 
the  defendant  proposed  to  give  in  evidence,  arose  in  the  following  manner. 
The  defendant  being  indebted  to  the  plaintiff  for  the  rent  of  other  chambers  be- 
longing to  the  plaintiff,  which  he  then  occupied,  the  plaintiff  demanded  payment 
at  the  rate  of  25  guineas  per  annum.  The  defendant  insisted  that  he  had  taken 
them  at  20  guineas  per  annum  only,  and  offered  to  pay  at  that  rate.  The 
plaintiff  refused  to  take  it,  and  threatened  to  distrain  if  not  paid  at  the  rate  of 
25  guineas  ;  the  defendant,  in  order  to  avoid  the  distress,  paid  at  that  rate,  and 
now  brought  a  witness  to  prove  that  the  chambers,  for  which  he  had  paid  at 
the  rate  of  25  guineas,  were  really  let  at  20  guineas,  so  that  he  had  overpaid 
the  plaintiff,  and  therefore  proposed  to  set-off  the  surplus,  as  having  been  paid 
by  compulsion,  and  in  his  own  wrong  ;  but  Lord  Kenyon  Ch.  J.  was  of  opinion, 
that  this  could  not  be  deemed  a  payment  by  compulsion,  as  the  defendant 
*might  by  a  replevin,  have  defended  himself  against  the  distress  :  that,  there- 
fore, after  a  voluntary  payment  so  made,  he  should  not  be  allowed  to  dispute 
its  legality  ;  and  therefore  rejected  the  evidence. 

5.  Of  a  compulsory  Payment  under  a  Colour  of  Process,  or  by 
Excess  of  Authority.] — An  action  of  indebitatus  assumpsit  for  money  had 
and  received,  will  lie  to  recover  back  money  which  has  been  obtained  through 
compulsion,  under  colour  of  process,  by  an  excess  of  authority  against  the  par- 
ty receiving  it,  although  it  has  been  paid  over  to  the  principal.  Thus,  in  the 
case  of  Snowdcn  v.  Davis,  (h)  which  was  an  action  for  money  had  and  received. 
And  the  facts  were,  in  substance,  as  follows,  viz.  that  a  writ  of  distringas  had 
issued  out  of  the  exchequer  directed  to  the  sheriff  of  Berks,  requiring  him  to 
distrain  the  inhabitants  of  the  borough  of  New  Windsor  by  their  lands  and 
chattels  for  the  deficiency  of  George  Dixon  and  John  Snoiv,  collectors,  in  the 
said  borough,  the  several  sums  of  7/.  85.  2d.,  and  74/.  2s.  Od.  By  virtue  of 
this  writ  the  sheriff  issued  a  warrant  to  the  defendant,  commanding  him  to  dis- 
train in  the  words  of  the  writ.  The  defendant  under  colour  of  the  warrant, 
demanded  of  the  plaintiff,  who  was  an  inhabitant  of  the  borough  of  New  Wind- 
sor, the  two  several  sums  of  11.  8s.  2d.,  and  74/.  2s.  ;  the  plaintiff  at  first  refus- 
ed to  pay  the  money,  but  upon  a  subsequent  demand  made,  he  paid  it.  On 
the  12th  of  February  1806,  another  writ  of  distringas  issued  to  the  sheriff  of 
Berks,  commanding  him  to  distrain  the  said  George  Dixon  and  John  Snow, 
collectors,  the  sum  of  132/.  14s.  Id.  ;  upon  this  writ  the  sheriff  issued  his  war- 
rant to  the  defendant,  to  distrain  upon  Snow  and  Dixon,  the  collectors  there, 
the  sum  of  132/.  14s.  Id.  upon  which  warrant  the  defendant  demanded  of  the 
plaintiff  that  sum,  and  also  6/.  12s.  5d.  for  issues.     The  plaintiff  at  first  refus- 


fe)  1  Esp.  Rep.  84.  (A)   1  Taunt.  359. 

♦346 


846  On  Promises  To  Pay  Over  Money     [Part  II. 

ed  to  pay  him,  but  the  defendant  took  possession  of  his  goods  ;  upon  which  the 
plaintiff  paid  him  both  sums.  The  defendant  proved,  that  before  the  time  of 
bringing  this  action  the  sums  levied  by  colour  of  the  first  writ  had  been  paid 
over  by  himself  to  the  sheriff,  and  by  the  sheriff  into  the  exchequer,  and  that 
the  sheriff  had  received  his  quietus.  He  also  proved,  tbat  the  sums  levied  un- 
der colour  of  the  last  writ,  had  been  paid  over  by  himself  to  the  under  sheriff 
before  the  action  brought.  Chambre  Just.,  before  whom  the  cause  was  tried, 
directed  the  jury,  that  the  plaintiff  was  entitled  to  recover  the  sums  he  had  so 
paid,  deducting  the  issues  upon  the  sums  mentioned  in  the  first  writ,  which  is- 
sues the  defendant  was,  by  the  practice  of  the  Court  of  Exchequer,  authorized 
to  levy.  The  jury  found  a  verdict  for  the  plaintiff  for  216/.  13s.  10d.,  being 
the  amount  of  the  several  sums  of  money  so  paid  by  the  plaintiff,  deducting 
thereout  4/.  1*.  6d.  for  the  issues  of  Is.  in  the  pound,  on  the  amount  received 
under  the  first  writ.  A  rule  nisi  was  afterwards  obtained  for  setting  *aside  the 
verdict,  and  entering  a  nonsuit,  upon  the  ground,  that  as  the  money  had  been 
paid  over  by  the  bailiff  to  his  principal,  the  action  for  money  had  and  received 
could  not  be  supported  against  the  bailiff:  the  Court,  however,  determined,  that 
the  action  for  money  had  and  received  was  properly  brought  under  the  circum- 
stances of  this  case  ;  and  the  rule  was  therefore  discharged.  (127) 

14.  OF  MONEY  RECEIVED  UNDER  A  VOID  AUTHORITY  ;  WHETHER  JU- 
DICIAL OR  OTHERWISE. 

Money  paid  under  a  void  authority  may  be  recovered  back  in  an  action  of 
indebitatus  assumpsit,  for  so  much  money  had  and  received  to  the  use  of  the 
party  paying  it  against  the  receiver.  Thus,  in  the  case  of  Sir  Richard  Newdi- 
gate  v.  Davy(i)  the  following  facts  were  proved:  Sir  Richard  Newdigate, 
the  plaintiff,  had  a  donative  which  he  gave  to  the  defendant,  Davy  ;  and  after- 
wards he  removed  Davy,  and  put  in  J.  S.  Davy  cited  Sir  Richard  Neicdigate 
in  the  time  of  James  II.  before  the  high  commissioners,  and  there  Sir  Richard 
Newdigate  had  sentence  against  him  to  restore  Davy,  and  to  pay  him  all  the 
arrears  that  he  had  received  :  Sir  Richard  Newdigate  paid  it  accordingly.  And 
after  the  revolution  Sir  Richard  Newdigate  brought  indebitatus  assumpsit 
against  Davy  for  this  money,  as  received  to  his  use.  Treby  Ch.  J.,  before 
whom  the  the  cause  was  tried,  held  that  the  action  well  lay  ;  for  when  money 
is  paid  in  pursuance  of  a  void  authority,  &c.  indebitatus  assumpsit  lies  for  it. 

So,  in  the  case  of  Fellhamv.  Terry, (k)  where  an  action  for  money  had  and 
received  was  brought  against  an  overseer  of  the  poor,  to  recover  money  in  his 
hands  which  had  been  levied   on  a  conviction,  but  that  conviction  was  after- 


(t)    1    Ld.  Raym.  742.     Bui.    N.  P.    133.     Term  Rep.  387.    Vide  2  Ld.  Raym.  1216. 
B.C.  S.P.     Sed  vide  1  Ld.  Raym.  742.  contra, 

(fc)  Loft.  207.  and  cited  in  Cowp.  419.   1. 


(127)  See  Levy  v.  Roberts,  1  M>Cord,  395. 
►347 


Chap.  4.]  Had  a  id  Received  to  the  Use  of   Another.     347 

wards  quashed  :  and  the  court  held  that  the  action  was  maintainable  for  the  clear 
money  in  the  defendant's  hands,  because  the  plaintiff  might  wave  the  tort,  and 
sue  for  the  clear  money  really  due. 

So  where  A.  took  out  administration  to  a  person  supposed  to  have  died  intes- 
tate, and  appointed  J.  S.  his  attorney,  who  received  money,  &c.  and  paid  it  to 
the  administrator;  afterwards  a  will  appearing,  the  letters  of  administration  were 
called  in,  and  the  executor  brought  an  indebitatus  assumpsit  against  the  attorney 
who  objected,  1st.  That  he  acting  only  as  an  attorney  for  A.,  who  in  fact  was 
administrator ;  the  receipt  of  the  money  was  not  his,  but  the  administrator's  ; 
and  2-dly,  That  the  action  ought  to  have  been  a  special  assumpsit ;  the  money 
being  received  by  special  authority,  and  that  expressly  to  the  use  of  another/ 
But  Trevor  Ch,  J.  held,(/)  that  the  authority  being  void,  it  was  a  receipt  *of 
so  much  money  for  the  use  of  the  plaintiff  on  an  implied  contract,  for  which 
an  indebitatus  assumpsit  well  lies. 

But  in  the  case  of  Allen  v.  Dundas,(?n)  it  was  determined,  that  an  authority 
given  by  a  court,  having  competent  jurisdiction,  is  not  a  void  authority,  though 
it  may  be  afterwards  vacated:  therefore  where  A.  stood  indebted  to  B.  for 
money  had  and  received,  and  B.  dies,  after  whose  death  C.  obtains  probate  of  a 
forged  will,  and  A.  not  knowing  of  this  circumstance  pays  the  money  over  to  him 
as  executor,  no  action  will  lie  to  recover  back  the  money  so  paid,  notwithstanding 
the  probate  be  afterwards  declared  null,  and  administration  be  granted  to  the 
intestate's  next  of  kin  :  but  if  the  supposed  testator  be  living  at  the  time  of 
granting  the  probate,  such  action  will  lie  ;  for  in  that  case  the  authority  is  void, 
the  ecclesiastical  court  having  no  jurisdiction. 

And  in  all  cases  where  the  authority  is  absolutely  void,  a  payment  made 
under  it  is  no  discharge.  As  where  the  defendant,  who  had  a  house  both  in 
America  and  London,  drew  bills  in  America  of  the  same  tenor  and  date  on 
their  house,  in  favour  of  the  plaintiffs ;  one  of  them  being  lost,  it  came  into  the 
hands  of  a  third  person,  who  forged  an  indorsement  in  the  name  of  the  payee, 
and  received  the  amount  of  it  from  the  defendants  :  afterwards  the  real  payees 
sued  them  on  the  other  bill  and  recovered. (?i)  So  where  A.  pays  a  debt  which 
he  owes  to  B.,  to  the  attorney  of  a  person  suing  A.  in  B.'s  name,  but  without 
any  authority  from  B.,  A.  is  still  liable  to  B.,  and  the  attorney  is  answerable  to 
A.  in  an  action  for  money  had  and  received,  though  he  has  actually  paid  over 
the  money  to  his  employer ;  and  though  he  conceived  that  he  was  acting  under 
the  real  authority  of  B.  :  but  in  point  of  fact  the  person  who  had  employed 
him  had  forged  a  power  of  attorney  in  B  's  name,  (o) 

But  in  the  case  of  Lindon  v.  Hooper,  (p)  it  was  determined,  that  an  action 
for  money  had  and  received  does  not  lie  to  recover  back  money  paid  for  the  re- 
lease of  cattle  distrained  damage  feasant,  though  the  distress  were  wrongful ; 


(1)   1  Salk.  27.  pi.  14.     But  see  Ld.  Raym.  («)  Ibid.  127.     See  also  8  East  Rep.  187. 

1210.  and  4  Bur.  1986.  contra.  (o)    Robson  v.    Eaton,    1   Term  Rep.    62. 

(m)  3  Term  Rep.  125.  (?)  Cowp.  414. 

43  *348 


548  On  Promises  To  Pay  Over  Money      [Part  II. 

the  proper  remedy  being  either  by  a  replevin,  or  by  action  of  trespass  vi  et 


armis. 


15.  OF  MONEY  RECEIVED  MALA  FIDE,  OR  OBTAINED  BY  DECEIT,  MIS- 
REPRESENTATION, OR  OTHER  FRAUDULENT  MEANS. 

If  money  is  received  mala  fide,  or  obtained  by  deceit  or  misrepresentation, 
it  may  be  recovered  back  in  an  action  of  indebitatus  assumpsit.  Thus,  in 
the  case  of  Madden  v.  Kempster,(q)  which  was  an  action  for  money  had  and 
received.  The  plaintiff  was  a  marine  agent  at  Portsmouth,  *and  the  defen- 
dant carried  on  the  same  business  in  London.  Captain  Hart,  an  officer  in  the 
marines,  had  employed  the  defendant  as  his  agent,  but  in  February  1807  he 
dismissed  him,  and  put  his  concerns  into  the  hands  of  the  plaintiff.  The 
defendant,  in  the  preceding  December,  had,  for  the  accommodation  of  Captain 
Hart,  accepted  a  bill  for  60/.  at  four  months.  On  ceasing  to  be  employed  by 
him,  he  went  to  Messrs.  Abraha7ns  and  Rice,  attornies  in  town,  and  agents  of 
the  plaintiff,  and  represented  to  them  that  there  was  a  balance  of  60 /.  due  to 
him  from  Captain  Hart.  Upon  this  they  gave  him  a  cheque  for  the  money  on 
the  plaintiff's  banker,  which  was  regularly  paid.  It  appeared  that  the  payee 
of  the  bill  accepted  by  the  defendant,  had  delivered  it  back  to  Hart,  on  receiv- 
ing another  in  its  stead  ;  and  the  witnesses  swore  they  believed  it  was  at  that 
time  cancelled  or  destroyed.  Abrahams  and  Rice  repeatedly  stated  these 
facts  to  the  defendant,  and  pressed  him  to  return  the  60/.,  but  he  refused  to  part 
with  it,  unless  he  had  a  bond  of  indemnity  from  the  plaintiff.  They  offered 
him  a  verbal  undertaking,  that  he  should  never  be  sued  upon  the  bill ;  but  he 
insisted  upon  a  security  under  seal.  Lord  Ellcnborough  Ch.  J.  said,  "  The 
plaintiff  is  entitled  to  recover  this  sum  of  money,  the  defendant  having  obtained 
it  by  misrepresentation.  He  mentioned  nothing  of  the  acceptance  ;  he  obtain- 
ed it  as  a  balance,  when  no  such  balance  was  due  to  him.  He  cannot  therefore 
set  up  the  lien,  to  which  he  might  otherwise  be  entitled." 

So,  in  the  case  of  Hogan  v.  Shee,(r)  which  was  also  an  action  for  money 
had  and  received.  It  was  brought  to  recover  a  sum  of  100/.,  which  had  been 
given  to  the  defendant  by  the  plaintiff  as  a  consideration  for  the  defendant's 
procuring  for  his  brother  a  place  of  a  cadet  in  the  service  of  the  East  India 
Company,  which  he  had  undertaken  to  do.  The  defendant  had  given  a  note, 
by  which  he  promised  to  repay  that  sum  within  three  months  in  case  he  did 
not  procure  the  place  within  the  time  limited.  The  plaintiff  proved  this  note, 
and  also  stated  that  the  interest  by  which  the  defendant  had  represented  he 
could  procure  the  appointment  was  that  of  Sir  Stephen  Lushingfon  or  Mr.  Bo- 
sanquft ;  the  latter  of  whom  was  called  to  prove,  that  the  defendant  had  no 
manner  of  interest  with  him,  nor  were  such  appointments  to  be  procured  for 
money.     The  plaintiff  having  discovered  the  deception,  brought  this  action  im- 


(<})  1  Campb.  15.  (r)  2  Esp.  Rep.  522. 

*349 


Chap.  4.]    Had  and  Received  to  the  Use  of  Another-      849 

mediately  without  waiting  the  expiration  of  the  three  months.  It  was  objected 
for  the  defendant,  that  the  action  could  not  be  maintained  till  the  expiration  of 
that  period.  But  in  answer  to  this  objection,  it  was  stated  by  the  counsel  for 
the  plaintiff,  and  assented  to  by  Lord  Kenyon  Ch.  J.  before  whom  the  cause 
was  tried,  "  That  where  a  contract  is  to  be  performed  in  a  given  time,  and  it 
is  bona  fide,  no  action  can  be  brought  till  that  time  is  expired,  but  where  it 
is  not  bona  fide,  as  where  *a  party  undertakes  to  do  any  thing,  and  on  the  faith 
of  it  another  pays  a  sum  of  money,  and  it  appears  such  person  cannot  perform 
what  he  has  undertaken  within  the  time  specified,  so  that  the  taking  of  the 
money  was  fraudulent,  the  party  may  consider  the  agreement  as  a  nullity,  and 
proceed  immediately  to  recover  back  the  money."  The  plaintiff  accordingly 
obtained  a  verdict  for  the  amount  received  by  the  defendant. 

So,  in  the  case  of  Hasser  v.  Wallis, (s)  the  plaintiff  being  a  feme  sole  mar- 
ried the  defendant  Wallis,  who  was  in  truth  married  to  another  woman  :  Walks 
made  a  lease  of  the  wife's  land,  reserving  rent,  and  received  the  rents  from  the 
tenants.  The  plaintiff  afterwards  discovering  the  former  marriage,  brought  this 
action  of  indebitatus  assumpsit  against  Wallis  for  so  much  money  had  and 
received  to  her  use.  And  after  verdict,  on  non  assumpsit,  it  was  objected,  that 
Wallis  having  no  right  to  receive,  the  tenant  was  not  discharged,  and  therefore 
an  action  lay  against  the  tenant,  who  had  his  remedy  over  against  Wallis. 
But  the  court  decided,  that  Wallis  was  visibly  a  husband,  and  the  tenant  dis- 
charged ;  at  least,  that  the  recovery  against  Wallis  in  this  action  would  dis- 
charge the  tenant,  for  this  would  be  a  satisfaction  to  the  lessor. 

So,  in  the  case  of  Thomas  v.  Whip,(t)  where  a  woman  was  nurse  to  the 
plaintiff's  intestate,  and  when  he  died  went  off  with  the  money  he  had  about 
him.  Parker  Ch.  J.  held,  that  an  action  will  well  lie  for  money  had  and  re- 
ceived 10  the  plaintiff's  use  ;  for  (he  said)  he  would  presume  a  subsequent 
agreement  to  make  a  contract  of  it ;  and  the  bringing  the  action  is  an  admis- 
sion of  such  consent.  And  he  said,  he  knew  but  of  two  cases  where  the  plain- 
tiff had  not  such  election,  the  one  was  in  case  of  money  won  at  play,  and  the 
other  in  case  of  money  paid  by  a  bankrupt  (though  on  valuable  consideration) 
after  the  act  of  bankruptcy  committed  ;  in  either  of  which  cases  the  action 
must  be  trover,  for  you  cannot  confirm  the  act  in  part,  and  impeach  it  for  the 
rest.  And  Lord  Hardwicke  (mentioning  this  case)  said,  he  always  so  held  it, 
and  had  nonsuited  many  plaintiffs  in  actions  of  assumpsit  under  such  circum- 
stances. 

So,  if  a  son  having  a  general  authority  to  receive  and  pay  money  for  his  fa- 
ther, receive  money  due  on  a  bill  to  his  father,  and  give  a  receipt  for  it,  as 
money  had  to  his  father's  use,  and  after  give  it  away,  the  father  may  bring  tro- 
ver against  the  donee  ;  for  his  son's  receipt  is  a  good  discharge  of  the  debt, 
and  therefore  his  possession  is  the  possession  of  the  father  ;  the  son  being,  as 
to  this  purpose,    his  servant ;  and  the  son   may,  in  this  case,  be  a  witness  (to 


(«)  1  Salk.  28.  11  Mod.  146.  Holt.  S6.S.  C.         (f)  Trin.  1  Geo.  I.  Bui.  N.  P.  130. 

•350 


350  On  Promises  To  Pay   Over  Money         [Part  II. 

prove  the  delivery  to  the  defendant,)  his   evidence  being  corroborated  by  other 
circumstances.  (*) 

*16.  IN  WHAT  CASES  MONEY  RECEIVED  BY"  OR  FROM  SHERIFFS,  BAI- 
LIFFS, GAOLERS,  OR  THEIR  DEPUTIES,  &c.  MAY  BE  RECOVERED 
BACK. 

1.  Of  Money  Received  by  or  from  Sheriffs  or  their  Officers.] 
If  a  sheriff  levies  money  upon  a  fieri  facias,  the  plaintiff  may  have  an 
indebitatus  assumpsit  against  him  for  so  much  money  received  to  his  use  ;(«) 
it  also  lies  against  his  executors,  if  he  die  ;  for  this  is  not  like  an  escape,  which 
is  a  wrong  done  by  the  sheriff  himself,  but  it  is  founded  on  a  duty  due  by  the 
sheriff,  which  shall  survive  and  charge  his  executors. (v)  In  the  case  of  an  ex- 
tent it  has  been  determined,  that  goods  seized  under  an  execution  on  a  judgment 
at  the  suit  of  a  subject,  are,  before  sale,  liable  to  be  taken  by  virtue  of  an  ex- 
tent tested  after  the  delivery  of  the  fieri  facias  to  the  sheriff;  (w)  and  there- 
fore it  has  been  held  that  the  judgment  creditor  cannot  maintain  an  action 
for  money  had  and  received  to  his  use  against  the  sheriff,  who  sells  under  the 
extent,  and  pays  the  proceeds  to  the  crown.  But  where  the  sheriff  sold  part 
of  the  goods  seized  under  a  fieri  facias  on  a  Saturday,  and  part  on  the  fol- 
lowing Monday,  and  received  the  money  from  the  purchasers  before  the  deliv- 
ery to  him  of  an  extent  tested  on  the  Monday,  the  Court  of  Common  Pleas  de- 
termined, that  an  action  for  money  had  and  received  would  lie  against  him  at 
the  suit  of  the  plaintiff  in  the  fieri  facias  for  the  amount  so  received,  (x) 
(128) 

So,  in  the  case  of  MlNeil  v.  Pcrchard,(y)  which  was  an  action  of  indebita- 
tus assumpsit  for  money  had  and  received,  brought  to  recover  the  sum  of  1061. 
under  the  following  circumstances  :  the  plaintiff  being  indebted  to  one  Parks, 
a  writ  issued,  directed  to  the  defendants,  sheriffs  of  London,  to  hold  him  to  bail 
for  that  sum  at  the  suit  of  Parks.  The  sheriffs  directed  their  warrant  to  one 
of  their  officers  of  the  name  of  Kellett,  who  arrested  the  plaintiff;  and  upon 
the  arrest  being  made,  the  plaintiff  paid  into  Kcllett's  hands  the  above  mention- 
ed sum  of  106/.,  which  Kellett  undertook  to  return  on  the  plaintiff's  putting  in 
and  justifying  bail  to  the  action.  The  plaintiff  did  put  in  and  justify  bail ;  and 
the  present  action  was  brought  to  recover  the  money  so  paid  into  Kellett' 's 
hands,  which  he  had  not  returned  to  the  plaintiff  pursuant  to  his  undertaking. 
And  upon  the  trial,  before  Lord  Kent/on  Ch.  J.,  the  plaintiff  obtained  a  verdict. 


(*)   1  Salk.  239.  Bu!.  N.  P.  35.  Mills,  16  East  Rep.  254. 

(i<)  Comb.  430.  2  Show.  79.  and  Dale  v.  (a)    Swain    v.  Morland,  1    Brod.  &  Bing. 

Birch,  3  Campb.  347.  370.  3  Mo.  740.  S.  C. 

(v)  3  Salk.  323.  Cro.  Car.     539.  (y)   1  Esp.  Rep.  263. 
(wj)  2  Saund.   70.    c.  n.  h.      Thurston    v. 

(128)  Money  levied  by  the  sheriff,  upon  a  judgment  which  is  afterwards  reversed,  cannot 
be  recovered  back  by  general  indebitatus  assumpsit  for  money  had  and  received,  unless  the 
money  be  actually  received  by  the  officer,  or  applied  to  his  use.  Isom  v.  Johns,  2  Munf.  272. 
See  Overton  v.  Hudson,  2  Wash.  172. 

*351 


Chap.  4.  J  Had  and  Received  io  the  Use  of  Another.     351 

So,  where  a  sheriff's  officer,  being  in  possession  of  the  tenant's   effects  under 
an  outlawry,  made  a  distress  for  the  rent,  sold  the  goods  so    distrained,  and  af- 
terwards the   outlawry  was  reversed  :  it  was  ruled,  that  *the  officer  was    liable 
to  pay  the  produce  of  the  goods  to  the    landlord,    in  an  action   for  money  had 
and  received.     Thus,  in  the  case  of  The  President  and  Scholars  of  St.  John's 
College,   Oxford,  v.  Murcott,(z)  which    was  also   an    action   of  indebitatus  as- 
sumpsit for  money  had  and  received.     On  the  trial,  a  verdict  was  taken  for  the 
plaintiff,  with  damages  166/.  subject  to  the  opinion  of  the  Court  of  King's  Bench 
on  the  following  case  :  On  the    21st  November,  1791,    William  Grant,  the  ten- 
ant of  a  farm  at  Wasperton   in  the  county  of    Warwick,  under  the  plaintiffs,  at 
the  yearly  rent  of  166/.  was  outlawed  in  an  action  of  trespass  on    the  case  up- 
on promises,  at  the  suit  of  W.  Priddle.     On  the  25th  of  April,  1792,  a  writ  of 
capias  ullagatum,  directed  to  the  sheriff  of  the  county  of  Warwick ,  was  issued 
against  Grant ;  on  which  the  sheriff,  on  the  7th  of  May  1792,    issued  his  war- 
rant, directed  to  the  defendant  and  other  persons,  commanding  them  to  seize  the 
goods  and  chattels,  lands  and  tenements   of  Grant;  so    that  the  sheriff  might 
cause  the  same  to  be  appraised  and  seised  into  his  Majesty's  hands.    Under  that 
warrant  the  defendant  entered  upon  the  farm    in  the  occupation  of  Grant,   and 
took  possession  of  all  the  goods  and  chattels  that  Grant  then  had   upon  the  pre- 
mises.    The   sheriff  then  summoned  a  jury  to  take  an   inquisition  by    virtue  of 
the  writ  on  the  11th  of  May  ;  but  the  inquisition  was  then  adjourned  to  the  next 
day,  when  it  was  taken.     On  the   11th  of  May,    (the  defendant  being    then   in 
possession  of  the  farm,  and  of  the  goods  and    chattels  of  Grant,  under  the  said 
writ)  the  Reverend  T.   Welsh.,  on  behalf  of  th,e   plaintiffs,    applied  to  the  de- 
fendant, and  informed  him  that  a  year's  rent  of  the  farm  was  due    to  the  plain- 
tiffs from  Grant,  and  that  he  intended  to  distrain  for  it.     The  defendant  then  of- 
fered to  make  the  distress  for  the  plaintiffs,  and  said  he  could    do  it  as  well  as 
another.     Mr.  Welsh  then  gave  the  defendant  directions  to    make   the  distress, 
and  accordingly,  on  the  12th  of  May,  he  distrained   part  of  the  effects    already 
in  his  possession  under  the  writ,  but  not  any  of  the  crops  then  growing  on    the 
premises.     Being  himself  an    auctioneer,  he,  on  the  18th  of  May,  sold  by  auc- 
tion sufficient  to  produce  the    166/.  due  for  rent,  and  the   expences    of  making 
the  distress  ;  and  about  a  week  after  the   sale  the   defendant    told   Mr.   Welsh, 
that  the  business  was  all  finished  ;  that  he  had  lodged   the  money  in  the    hands 
of  his  bankers,  and  it  was  ready   whenever    the    College   chose   to  demand    it. 
About  a  fortnight  afterwards,  Mr.  Welsh  applied  to  the  defendant  for   the  mo- 
ney, but  the  defendant  then  told  him  that  he  had  had   advice  upon  the  business ; 
that  he  apprehended  the  distress  was  not   legal,  and   he  would  not  pay  the    mo- 
ney.    The  defendant  continued  in  the  occupation   of  the  farm  under   the  writ  ; 
and  when  the  crops  growing  on  the  farm  became  ripe,   reaped  them,   and   got 
in  the  harvest.     On  the  4th  October,    1792,  the  outlawry  against  Grant  was  re- 
versed.     *On  the  24th    October,  a    writ  of  amovcas    manus,  on  the  reversal  of 
the  outlawry,  was  issued  ;  and  upon  which  the  sheriff,  on  the  7th  of  November, 

(z)  7.  Term  Rep.  259. 

*352   *353 


353  On  Promises  To  Pay  Over  Money       [Part  11. 

issued  his  warrant  and  caused  the  same  to  be  delivered  to  the  defendant  ;  and 
the  defendant  on  the  same  day  quitted  the  possession  of  the  said  farm,  and  the 
tenant  re-entered.  In  July,  1793,  after  the  defendant  had  quitted  the  possession 
of  the  farm,  Mr.  Welsh  again  applied  to  him  for  the  166/.  but  the  defendant 
refused  to  pay  it,  saying,  that  he  had  expended  money  in  getting  in  the  crops 
upon  the  farm,  and  if  Grant  would  pay  him  for  that  expence,  he  would  pay 
the  166/.  to  the  plaintiffs.  The  Court  were  of  opinion  that  the  plaintiffs  were 
entitled  to  recover  the  166/.  as  so  much  money  received  by  the  defendant  for 
their  use.  And  Ashhurst  J.  said,  '  "  The  instant  this  outlawry  was  revers- 
ed, the  judgment  of  outlawry  became  mere  waste  paper  and  the  rights  of  all 
the  parties  were  restored  to  the  same  situation  as  if  no  outlawry  had  taken 
place.  In  this  case  the  defendant  made  this  distress  for  the  plaintiffs  at  his 
own  request ;  and  having  received  the  money,  he  objects  to  pay  over  to  his 
employers  on  another  account,  with  which  they  have  no  concern  :  but  having 
taken  upon  himself  to  act  as  their  bailiff,  and  the  bar,  which  before  existed, 
being  now  removed  by  the  reversal  of  the  outlawry,  it  appears  that  he  has  re- 
ceived money  for  the  use  of  the  plaintiffs,  which  in  conscience  he  is  not  entitled 
to  retain  merely  on    account  of  his  having  some  demand  on  the  tenant." 

But  in  the  case  of  Green  v.  Austin,  (a)  it  was  held,  that  an  action  for  mon- 
ey had  and  received  cannot  be  maintained  by  a  landlord  to  recover  the  amount 
of  a  year's  rent  against  the  sheriff  who  has  sold  his  tenant's  goods  under  an 
execution.  The  action  in  this  case  was  brought  against  the  sheriff  of  Surrey 
to  recover  one  year's  rent  due  to  the  bankrupt  fiom  a  tenant,  whose  goods,  to  a 
greater  value,  the  defendant  had  sold  under  a  writ  of  fieri  facias  :  and  it  was 
contended,  that  as  the  sheriff,  under  the  8  Ann.  c.  14.,  ought  to  have  paid  the 
landlord  a  year's  rent  before  satisfying  the  execution,  the  price  of  the  goods  in 
his  hands  became  money  had  and  received  to  the  landlord's  use  ;  Lord  Ellenbo- 
rough,  however  held,  after  reference  to  the  statute,  "  that  money  had  and  re- 
ceived would  not  lie,  and  that  the  proper  remedy  was  a  special  action  on  the 
case  against  the  sheriff  for  removing  the  goods  from  the  premises  under  the 
execution  before  the  year's  rent  was  paid  to  the  landlord  :"  the  plaintiff  was 
therefore  nonsuited. 

An  action  for  money  had  and  received  at  the  suit  of  a  plaintiff  who  has  sued 
out  a  fieri  facias  lies  against  the  sheriff  who  executed  it,  if  he  retain  more  mon- 
ey in  his  hands  than  he  is  entitled  to  do  ;  the  party  injured  not  being  bound  to 
proceed  by  a  summary  application  to  the  Court,  {b)  So,  where  a  sheriff  claim- 
ed as  of  right,  upon  a  warrant  issued  *by  him  in  the  execution  of  his  office,  a 
larger  fee  than  he  was  entitled  to  by  law,  and  the  attorney  paid  it  in  ignorance 
of  the  law,  it  was  determined  that  the  latter  might  maintain  money  had  and  re- 
ceived for  the  excess  paid  above  the  legal  fee,  or  might  set  off  the  same  in  an 
action  by  the  sheriff  against  him :  and  that  the  sheriff  was  not  entitled  to  more 
than  a  fee  of  four-pence  upon  every  warrant  issued  by  him.(c) 

(a)  3  Campb.  260.  (c)  Dew  v.  Parsons,  2  Barn.  &  Aid.  562. 

(ft)  Longdill  v.  Jones,   1  Stark.  345. 
*354 


Chap.  4.]     Had  and  Received  to  the   Use  of  Another.   354 

So,  where  a  sheriff  issued  a  warrant  on  mesne  process  to  distrain  the  woods 
of  A.  ;  but  the  bailiff  levied  the  debt  upon  the  goods  of  B.,  and  paid  it  over : 
it  was  holden  that  money  had  and  received  will  lie  against  the  bailiff.  Ul) 

Where  a  levy  was  made  on  the  goods  of  a  trader  after  he  had  committed 
an  act  of  bankruptcy,  and  the  money  levied  was  paid  over  to  the  execution  cred- 
itor :  but  afterwards  an  action  of  trover  was  brought  by  the  assignees  against 
the  sheriff  and  his  bailiff,  in  which  damages  were  recovered  ;  and  these  to- 
gether with  the  costs,  were  paid  by  the  bailiff:  it  was  determined,  that  there 
was  no  implied  promise  on  the  part  of  the  plaintiff  in  the  original  suit  to  indem- 
nify the  bailiff,  or  to  contribute  to  the  damages  and  costs  in  the  action  of  tro- 
ver ;  but  that  the  bailiff  might  maintain  money  had  and  received  to  recover  back 
the  levy  money  paid  over.(e) 

2.  Of  Money  Received  by  Gaolers.] — If  by  the  regulations  of  a  prison 
made  by  the  magistrates,  certain  rates  are  settled  for  lodging,  &c.  within  the 
prison,  the  gaoler  cannot  take  more  than  that  sum  ;  and  if  he  does,  he  shall 
be  liable  to  refund  it,  though  he  has  paid  it  over  to  the  magistrates,  to  whom 
he  accounts.  This  was  settled  in  the  case  of  Miller  v.  Aris,(  f)  which  was 
an  action  of  indebitatus  assumpsit  for  money  had  and  received  ;  and  brought 
against  the  defendant,  who  was  governor  of  the  prison  in  Cold-Bath  Fields  to 
recover  a  sum  of  money  paid  by  the  plaintiff,  for  lodging  and  victuals  while 
he  was  confined  as  a  prisoner  in  that  place  of  confinement.  This  prison  is 
under  the  regulation  of  the  magistrates  of  the  county  of  Middlesex,  by  whom 
a  particular  code  of  printed  regulations  is  framed  for  its  government.  And  by 
the  25th  rule  of  those  printed  regulations,  "  The  governor  is  allowed  to  demand 
of  every  person  committed  for  safe  custody  only,  and  not  in  execution  and 
requiring  to  be  lodged  in  a  better  manner  than  the  rest  of  the  prisoners,  and 
able  to  pay  for  a  bed,  the  sum  of  1*.  for  a  night ;  and  to  keep  one  or  more 
beds  always  fit  for  use,  in  case  such  beds  should  be  wanting."  It  was  proved 
that  the  plaintiff,  having  had  one  of  those  beds  while  he  was  in  custody  had 
been  charged  and  paid  for  it  one  guinea  per  week  :  to  recover  the  overplus  of 
which  sum,  above  that  settled  by  the  rule,  was  one  of  the  articles  of  the  plain- 
tiff's demand. 

By  another  of  those  printed  regulations,  the  governor  is  prohibited  *from  fur- 
nishing the  prisoners  with  victuals,  or  contracting  for  the  same.  The  plaintiff 
during  the  period  of  his  confinement,  had  been  charged  and  paid  for  victuals  :  to 
recover  the  money  so  paid,  constituted  the  second  article  of  his  demand.  In 
answer  to  the  demand  for  lodging,  the  defendant  relied  that  he  accounted  at  the 
sessions  to  the  county  for  the  sums  received  on  account  of  the  gaol ;  that  the 
charge  of  one  guinea  per  week  was  sanctioned  by  usage,  and  authorized  by  the 
justices,  who  passed  the  accounts,  and  he  gave  in  evidence  the  book  kept  for 
that  purpose,  containing  the  account  of  the  lodging  of  the  several  prisoners  • 
and  which  book  was   furnished   to  the  magistrates,   and  contained  the  charge 


(d)   Hnmcdon  v.  Davis,  1  Taunt.  359.  If)  3  Esn   Ren  931 

(0   Wilson  v.  Miller,  2  Canipb.  452.  '  '  " 


'355 


355  On  Promises  To  Pay  Over  Money  [Part  II. 

in  question.  The  second  demand  for  victuals  was  completely  disproved  ;  it  ap- 
pearing that  the  cook  of  the  prison  was  the  person  solely  interested  in  provid- 
ing the  victuals.  Lord  Kent/on  Ch.  J.,  before  whom  the  cause  was  tried,  said, 
"  For  the  demand  of  victuals,  the  plaintiff  cannot  recover  :  but  I  am  of  opinion 
that  the  action  is  maintainable  for  the  overplus  money  paid  on  account  of  the 
lodging.  It  is  relied  on  for  the  defendant,  that  he  is  merely  an  agent,  receiving 
the  money  from  the  prisoners,  and  paying  the  produce  to  the  county.  The  case 
of  Sadler  v.  Evans,  4  Burr.  1985,  is  relied  on;  it  has  been  so  laid  down  by 
very  high  authority  in  that  case,  that  where  money  has  been  received  by  an 
agent,  you  cannot  sue  him,  but  must  have  recourse  to  the  principal ;  but 
that  is  where  there  is  no  corruption  in  the  foundation  of  the  contract,  nor  is 
bottomed  in  oppression  or  immorality.  The  rules  for  the  regulations  of  this 
prison  are  properly  made  ;  but  prisons  are  not  places  where  prisoners  are  to  have 
all  the  conveniences  and  comforts  of  life.  Gaolers  are  bound  to  treat  their 
prisoners  with  humanity  ;  but  the  regulations  framed  for  the  prison  ought  to  be 
conformed  to.  These  regulations  have  pointed  out  what  sums  ought  to  be  tak- 
en :  it  should  not  be  in  the  power  of  the  gaoler  to  dispense  with  those  regula- 
tions, and  to  enter  into  contracts  with  those  in  their  custody,  and  under  their 
controul :  to  allow  that,  might  be  to  sanction  oppression.  In  cases  of  usury, 
the  person  whose  necessities  prompt  him  to  borrow,  will  enter  into  any  impro- 
vident contract  whatever,  and  submit  to  any  terms,  however  excessive,  to 
procure  money  :  but  the  law  will  protect  him,  and  not  suffer  it.  In  this  case  I 
think  the  law  will  interpose  in  the  same  way,  and  not  permit  such  an  agree- 
ment to  be  entered  into.  I  am  therefore  of  opinion,  that  the  plaintiff  is  entitled 
to  recover  the  money  paid  for  the  lodging,  above  the  sum  allowed  by  the  reg- 
ulations." 

+  17.  OF  MONEY  RECEIVED  BY  THE  RECEIVER  GENERAL  OF  A  COUNTY 
FOR  A  PARTICULAR  PURPOSE  ;  OR  BY  REVENUE  OR  OTHER  PUBLIC 
OFFICERS,  EITHER  BY  MISTAKE  OR  OTHERWISE. 

1.  For  Money  Received  by  the  Receiver  General  of  a  County.] 
An  action  of  indebitatus  assumpsit  lies  upon  the  stat.  43  Geo.  3.  c.  55.  by  a 
lessee  of  certain  land  against  the  receiver  general  of  the  land-tax  for  a  county, 
to  recover  a  sum  of  money  duly  assessed  by  a  jury  as  a  compensation  to  the 
plaintiff  for  his  damages  by  reason  of  giving  the  possession  and  use  of  that  land 
"  during  the  time  for  which  the  same  should  he  required  for  the  public  ser- 
vice."{g) 

2.  Of  Money  Received  by  Revenue  Officers.] — If  duties  be  paid  to  a 
revenue  officer  by  mistake,  and  he  pays  them  over  to  his  superior  officer  before 
he  has  notice  of  the  mistake,  an  action  of  indebitatus  assumpsit  does  not  lie 
against  him.  Thus,  in  the  case  of  Greenway  v.  Hurd,(h)  which  was  an  ac- 
tion of  indebitatus  assumpsit  for  money  had  and  received.     At  the  trial  it  ap- 

(?)  Bingham  v.  Serle,  5  East  Rep.  534.  530.  S.  P. 

(h)  4   Term  Rep.  553.    Cowp.    69.  Loft. 

*356 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.         S56 

peared,  that  the  action  was  brought  to  recover  back  529/.,  which  the  plaintiff 
had  paid  in  July  1785  to  the  defendant,  who  was  a  collector  of  excise,  for  cer- 
tain duties  on  the  cotton  manufacture  imposed  by  the  24  Geo.  3.  c.  40. ;  which 
act,  it  was  admitted,  had  been  repealed,  as  far  as  related  to  these  duties 
by  the  25  Geo.  3.  c.  24.  before  the  duties  were  incurred  ;  the  latter  statute  re- 
pealing the  duties  "  from  and  after  the  passing  of  that  act,"  and,  consequently, 
relating  to  the  first  day  of  the  sessions,  the  25th  of  January  1785.  In  June, 
1785,  the  plaintiff  positively  refused  to  pay  these  duties,  which,  however,  he 
afterwards  paid  on  the  22d  of  July  following.  It  was  objected  by  the  defen- 
dant's counsel,  that  as  the  defendant  had  paid  the  money  over  to  his  superior 
officer  before  the  action  was  brought,  the  plaintiff  could  not  recover  back  the 
money  from  the  defendant  who  was  a  public  officer,  and  who  had  been  oblig- 
ed, under  the  terrors  of  a  penalty,  to  pay  over  this  money  ;  and  that  if  he  could, 
the  defendant  was  entitled  to  a  month's  notice  before  the  action  was  brought,  un- 
der the  23  Geo.  3.  c.  70.  s.  30.  which  had  not  been  given  ;  and  the  judge  be- 
ing of  this  opinion,  nonsuited  the  plaintiff.  Amotion,  however,  was  afterwards 
made  to  set  aside  that  nonsuit:  but  the  Court  were  of  opinion,  that  the  action 
would  not  lie,  because  the  money  had  been  paid  over  before  the  action  was 
brought,  and  a  month's  notice  had  not  been  given  to  the  defendant. 

But  this  form  of  action  lies  to  recover  back  money  paid  to  a  custom-house 
•officer,  which  has  not  been  paid  over  by  him,  where  the  duty,  in  respect  of 
which  he  received  the  money,  was  not  imposed  by  lawful  or  sufficient  authority 
to  warrant  it.(i)  So,  indebitatus  assumpsit  for  money  had  and  received,  will  lie 
to  recover  back  exorbitant  fees  taken  by  a  custom-house  officer  :  thus,  in  the 
case  of  Stevenson  and  others  v.  Mortimer,  (k)  which  was  an  action  for  money 
had  and  received,  brought  by  the  plaintiffs,  as  owners  of  a  boat  employed  in 
carrying  chalk  and  lime  from  one  part  of  the  coast  of  Sussex  to  another,  viz. 
from  East  Bourne  to  Hastings :  and  the  action  was  brought  to  recover  the 
whole  or  part  of  certain  sums  of  money  paid  by  the  master  of  the  boat,  who 
was  the  plaintiff's  servant,  to  the  defendant,  a  custom-house  officer,  as  his  fees 
due  upon  the  master's  taking  out  a  coquet  and  bond  under  an  idea  that  this 
boat  came  within  the  stat.  13  and  14  Car.  2.  c.  11.  s.  7.,  by  which  it  is  enacted, 
••  That  no  goods  shall  be  shipped,  or  put  on  board,  to  be  carried  forth  to  the 
open  sea  from  any  port  or  place,  &c,  to  any  other  port  or  place  of  the  realm, 
without  a  sufferance  or  warrant  first  had  and  obtained  ;  and  that  the  master  of 
every  ship  and  vessel,  who  shall  lade  or  take  in  any  goods,  &c.  in  any  port, 
member,  or  creek,  within  the  kingdom,  to  be  landed  or  discharged  in  some 
other  port,  member,  or  creek,  shall,  before  the  ship  or  vessel  be  removed 
or  carried  out  of  the  port,  where  he  shall  take  in  such  lading,  take  out  a  co- 
quet, and  become  bound,  in  a  certificate  with  good  security,  in  the  value  of 
the  goods,  for  delivery  thereof,  in  the  port  or  place  for  which  the  same  shall  be 
entered ;  and  to  return  a  certificate  of  their  being  so  landed,  upon  pain  of  for- 


CO  Campbell  v.  Hall,  Cowp.  204.  (jfc)  Con-p.  805. 

44  #357 


357  Ofi  Promises  To  Pay  Over  Money     [Part  II. 

feiting  the  penalty  of  the  bond."     The  question  intended  to  have  been  tried  was, 
whether  a  coquet  was  necessary  to  be  taken  out  under  the  stat.  13  and  14  Car. 
2.  for  goods  carried  coastwise.     But  before  the  trial  the  plaintiffs  gave  notice, 
that  they  also  meant  to  go  upon   the  ground  of  the  defendant  having  taken  ex- 
orbitant fees  :  he  had  demanded  and   received  14s.   6d.     Mr.   Serjeant  Sayerf 
before  whom  the  cause  was  tried,  was  of  opinion,  that  this  duty  being  imposed 
by  the  statute  upon  the  master,  the   action   was  wrong  brought  in  the  name 
of  the  owners,  and  accordingly  nonsuited   the  plaintiff.     But  upon  a  motion 
beino-  made  for  a  rule  to  set  aside  the  nonsuit,  and  for  a  new  trial,  the  Court 
of  King's    Bench  determined  that   the    action  was  properly  brought    against 
the  defendant,  and  therefore   made  the  rule   absolute.     And  Lord    Mansfield, 
Ch.  J.,  said  :  "  The  ground    of  the  nonsuit   at   the  trial  was,  that  this  action 
could  not  be  well  maintained  by  the  plaintiffs,  who  are  the  owners  of  the  vessel 
in  question;  but  it  ought  to  have  been  brought  by  the  master  who   actually  paid 
the  money.     That  ground,  therefore,  makes  now  the  only  question  before   us  ; 
as  to  which  there  is  not  a  particle  of  doubt.      Qui  facit  per  alium,  facit  per  se. 
Where    a  man  pays  money  by  *his  agent,  which  ought  not  to  have  been  paid, 
either  the  agent  or  principal  may  bring  an  action  to  recover  it  back.     The  agent 
may,  from  the  authority  of  the  principal,  and  the    principal  may,  as  proving  it 
to  have  been  paid  by  his  agent.     If  money  is  paid  to  a  known   agent,    and    an 
action  brought  against  him  for   it,  it  is  an  answer  to  such   action,  that  he  has 
paid  it  over  to  his  principal,  Sadler  v.  Evans,  4  Burr.  1984-     Here  the  statute 
lays  the  burthen  on  the  master  from  necessity  ;  and  makes  him  personally  liable 
to  penalties  if  he   neglects   to  perform  the  requisitions   of  it.     But  still  he  is 
entitled  to  charge  the  necessary  fees,  &c,  upon  his  doing  so,   to  the  account  of 
his  owners.     And  in  this  case,  there  can  be  no  doubt   of  the  relation  iir which 
the    master  stood  to  the  plaintiffs ;  for  he  is   the  witness,   and  he   swear  that 
the  money  was  paid  by  the  order  of  the  plaintiffs.     Therefore   they  are  very 
well  warranted  to  maintain  the  action.     If  the  parties  had  gone  to  trial  upon 
an    apprehension  that  the  only  question   to  be  tried   was,  whether  this  was  a 
case  within  the  act  of  parliament,  consequently,  whether   any    fee  was  due, 
the  plaintiff  could  not  have  been  permitted  to  surprise  the  defendant  at  the  trial, 
by  starting  another  ground  upon  which  to  recover  a  Norfolk  groat.     An   action 
for  money  had  and  received  is  governed  by  the  most  liberal  equity.     Neither 
party   is  allowed    to  entrap  the  other  in  form.     But  here    the   plaintiff  gave 
notice,  that  he  meant  to  insist  that  too  much  was   taken ;  and  therefore  both 
came  to  the  trial  with  equal  knowledge  of  the  matter  in  dispute." 

So,  if  a  revenue  officer  seize  goods  as  forfeited,  which  are  not  liable  to 
seizure,  and  take  money  of  the  owner  to  release  them,  the  latter  may  recover 
back  the  money  in  an  action  for  money  had  and  received ;  and  in  such  an  ac- 
tion a  month's  notice  need  not  be  given  under  the  23  Ceo.  III.  c.  70.  s.  30. 
Thus  in  the  case  of  Irving  v.  Wilson  and   another,  (I)  which  was  an   action  of 


(0  4 Term  Rep.  4S5. 
r358 


Chap.  4.]     Had  and  Received  to  the   Use  of  Another-    358 

indebitatus  assumpsit  for  money  had  and  received,  to  recover  the  sum  of  21.  lis. 
under  the  following  circumstances :  The  defendants,  who  were  custom-house 
officers,  had  seized  some  hams  near  Carlisle,  which  the  plaintiff  was  sending 
in  three  several  carts  from  Scolla?id  to  Carlisle.  The  plaintiff  obtained  one 
permit  for  the  whole  ;  but  owing  to  some  accident  two  of  the  carts  were  at 
the  distance  of  two  miles  behind  the  other :  when  the  defendants  met  the  first 
cart  and  demanded  the  permit,  the  driver  informed  them  that  the  permit  was 
with  the  other  carts  which  came  up  in  an  hour  and  a  half  afterwards,  before 
the  first  reached  Carlisle,  but  not  till  the  officer,  after  waiting  some  time  with- 
out seeing  the  other  carts,  had  made  the  seizure.  They  were  all  three  driven  to 
the  custom-house  at  Carlisle,  the  defendants  saying  they  could  not  release  them 
unless  the  collector  were  applied  to.  When  the  whole  was  explained  to  the  col- 
lector, he  said  he  *would  have  no  concern  in  the  taking.  And  the  defendants  then 
refused  to  give  up  the  carts  with  the  cargoes,  unless  the  plaintiff  would  give 
them  21.  lis. ;  which  he  accordingly  did.  At  the  trial,  it  was  objected  on  the 
part  of  the  defendants,  that  the  plaintiff,  by  this  transaction  with  the  revenue 
officers,  had  incurred  a  penalty  of  50/.,  and  that  he  could  not  recover  back,  the 
money  which  he  had  paid  to  have  the  goods,  which  had  been  siezed,  returned 
to  him  ;  and  the  plaintiff  was  nonsuited,  with  leave  to  move  to  set  that  non- 
suit aside,  and  to  enter  up  a  verdict  for  him,  if  the  court  of  King's  Bench 
should  be  of  opinion  that  the  plaintiff  could  maintain  this  action.  It  was  also 
contended,  that  the  defendants  were  entitled  to  a  month's  notice  under  the  23 
Geo.  III.  c.  70.  s.  30.  and  24  Geo.  III.  c.  46.  s.  39. 

But  the  court  determined,  that  the  plaintiff  was  entitled  to  recover  the  money 
in  question  in  this  form  of  action,  and  without  any  previous  notice.  And  Lord 
Kenyan  Ch.  J.  said  :  "  The  revenue  laws  ought  not  to  be  made  the  means  of 
oppressing  the  subject.  Here,  a  permit  having  been  granted  for  the  whole 
quantity  of  goods,  and  which  was  with  the  other  carts  behind  at  the  time  of  the 
seizure,  the  seizure  was  clearly  illegal.  The  permit  for  the  entire  quantity 
could  not  be  separated  and  distributed  to  each  of  the  carts.  And  therefore 
whatever  ground  of  probability  there  was  for  stopping  the  first  cart,  yet  after 
the  matter  was  cleared  up,  there  was  no  pretence  for  making  a  seizure  ;  and  it 
was  highly  improper  in  the  officers  to  take  the  money.  If  goods  liable  to  a  for- 
feiture be  forfeited,  the  officer  is  to  seize  them  for  the  king ;  but  he  is  not  to  be 
permitted  to  abuse  the  duties  of  his  station,  and  to  make  it  a  mode  of  extortion. 
Here  the  defendants  took  the  money  under  circumstances  which  could  by  no 
possibility  justify  them,  and  therefore  this  could  not  be  called  a  voluntary  pay- 
ment; but  it  was  extorted  from  the  plaintiff,  and  in  that  case  no  notice  to  the 
defendants  was  necessary." 

13.  OF  EXCESS  OF  TOLL  RECEIVED  BY  TOLL-GATE  KEEPERS. 

If  a  toll-gate  keeper  either  levies  or  receives  toll  when  none  is  due,  or  if  he 
demands  and  takes  an  excess  of  toll,  the  party  paying  may  afterwards  recover 
it  back  by  action  of  indebitatus  assumpsit.     Thus,  in  the  case  of  Parsons  v. 

*359 


359  On  Promises  To  Pay  Over  Mo?iey         [Part  If. 

Blandi/)(m)  where  the  defendant  having  levied  a  double  toll  upon  a  waggon  be- 
longing to  the  plaintiffs,  they  made  application  to  two  justices  of  the  peace,  in 
pursuance  of  the  directions  of  the  Bath  act;  who,  upon  hearing  the  complaint, 
adjudged  ihe  single  duty  only  to  be  due.  And  the  defendant  refusing  to  pay  the 
overtoil,  the  plaintiffs  sought  to  recover  it  by  an  action  of  assumpsit.  Two  ob- 
jections were  taken  ;  first,  because  the  proper  remedy  in  this  case  under  *the 
Bath  act,  was  by  an  appeal  to  the  Quarter  Sessions  ;  and  secondly,  if  the  action 
of  assumpsit  would  he,  still  notice  ought  to  have  been  given  pursuant  to  the 
directions  of  that  act.  The  court,  however,  determined  against  both  these  ob- 
jections, and  Wood  Baron  said,  "  There  are  two  questions  to  be  considered  : 
1st.  As  to  appeal,  it  is  quite  clear  that,  where  a  power  is  given  to  justices  of 
the  peace  to  determine,  it  is  final,  unless  an  appeal  is  particularly  given  ;  but 
looking  at  the  appeal  clause,  this  case  is  I  think  expressly  excepted  ;  there  being 
a  particular  mode  of  relief  appointed  in  this  case,  and  as  no  method  of  recover- 
ing the  money  adjudged  to  be  wrongfully  taken  by  the  collector,  is  given  by 
the  act,  therefore  the  party  must  apply  to  his  common  law  remedy.  2dly. 
As  to  notice,  this  is  neither  within  the  letter  or  spirit  of  the  clause  ;  the  given 
notice  generally  contemplates  tort  or  trespass  ;  it  can  never  apply  where  a 
sum  of  money  had  been  adjudged  ;  the  defendant  requires  no  notice  ;  there 
can  be  no  defence,  and  therefore  he  does  not  want  time.  As  to  the  form  of 
the  action,  you  shall  not  try  title,  or  any  thing  of  that  nature,  by  an  action  for 
money  had  and  received  ;  but  here  there  is  nothing  collateral  to  be  tried  ;  even 
if  the  act  had  said,  that  the  justices  should  decree  restitution,  I  should  be  in- 
clined to  think  that  the  action  for  money  had  and  received  would  lie." 

19.    OF  MONEY  RECEIVED  BY    PARISH    OFFICERS   FOR   THE    MAINTE- 
NANCE, &c.  OF  BASTARD  CHILDREN. 

An  action  will  lie  to  recover  back  money  paid  to  parish  officers  by  a  person 
taken  up  under  a  warrant  as  the  putative  father  of  a  bastard  child,  by  way  of 
bargain  with  the  parish  to  be  released  from  all  liability  respecting  the  child, 
against  those  who  received  the  money  ;  although  before  the  commencement  of 
the  action,  they  may  have  gone  out  of  office,  and  accounted  with  their  succes- 
sors for  so  much  of  the  money  as  was  not  expended  on  the  child  and  its  mother 
during  her  lying-in.  However,  in  such  action  the  plaintiff  is  only  entitled  to 
recover  the  surplus,  after  these  charges  have  been  deducted.  This  was  settled 
in  the  case  of  Townson  v.  Wilson,(n)  in  which  Lord  Ellcnborough  Ch.  J.  said, 
u  If  any  person  gets  money  into  his  hands  illegally,  he  cannot  discharge  him- 
self by  paying  it  over  to  another,  and  the  contract  under  which  this  money  was 
paid,  was  certainly  illegal,  as  it  gave  the  parish  an  interest  in  abridging  the  life 
of  the  child.  When  this  question  first  came  before  me,  on  account  of  its  novel- 
ty, I  consulted  the  other  judges  upon  it ;  and  I  found  that  they  (including  a  no- 


s 


m)  Wightman's    Rep.  in   the  Exch.    22.      Hewlett,  3  Mo.  211.   and   Hodgson   v.    WU~ 
)   1   Campb.    396  See  also    Walkins  v.     limns,  6  Eep.  Rep.  29. 

•360 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.     360 

ble  friend  of  mine  now  no  more)  were  of  the  same  opinion.  The  chief  objec- 
tion to  the  action  *appears  to  be,  that  the  parties  may  be  represented  as  in  pa- 
ri delicto ;  but  that  cannot  be  said  in  this  instance,  as  the  plaintiff  had  been  ar- 
rested, and  was  under  duress  when  he  deposited  the  money  with  the  defendants. 
I  am  of  opinion,  however,  that  there  should  be  a  deduction,  by  way  of  set  off 
from  the  40/.  for  so  much  as  the  defendants  expended  about  the  lying-in  of  the 
mother,  and  the  maintenance  of  the  infant." 

So,  if  a  promissory  note  is  given  to  parish  officers  as  an  indemnity  ao-ains  t 
a  bastard  child,  they  can  only  recover  upon  it  so  much  as  the  parish  has  ex- 
pended upon  the  child  and  its  mother,  (o)  And  no  action  at  all  can  be  main- 
tained upon  the  note,  if  the  parish  has  not  been  damnified,  (p) 

20.  OF  MONEY  RECEIVED  UPON  AN  ILLEGAL  CONTRACT  OR  TRANS- 
ACTION, WHICH  IS  EITHER  MALUM  LV  SE,  OR  MALUM  PROHIBITUM: 
AND  IN  WHAT  CASES  THE  PARTIES  ARE  CONSIDERED  NOT  ONLY 
PARTICEPS  CRIMIMS,  BUT  /JV'  PARI  DELICTO  TO  SUCH  AN  EXTENT 
AS  TO  DEPRIVE  THE  PARTY  PAYING  THE  MONEY  FROM  RECOV- 
ERING IT  BACK  FROM  THE  RECEIVER. 

Where  money  has  been  paid  upon  an  illegal  contract,  it  is  a  general  rule, 
that  if  the  contract  be  executed,  and  both  parties  are  in  pari  delicto,  neither  of 
them  can  recover  from  the  other  the  money  so  paid  ;  but  if  the  contract  con- 
tinues executory,  and  the  party  paying  the  money  be  desirous  of  rescind- 
ing it,  he  may  do  so,  and  recover  back  his  deposit  by  action  of  indebitatus  as- 
sumpsit for  money  had  and  received,  (q)  And  this  distinction  is  taken  in  the 
books,  namely,  where  the  action  is  in  affirmance  of  an  illegal  contract,  the  ob- 
ject of  which  is  to  enforce  the  performance  of  an  engagement  prohibited  by 
law,  clearly  such  an  action  can  in  no  case  be  maintained  :  but  where  the  ac- 
tion proceeds  in  disaffirmance  of  such  a  contract ;  and,  instead  of  endeavouring 
to  enforce  it,  presumes  it  to  be  void,  and  seeks  to  prevent  the  defendant  from 
retaining  the  benefit  which  he  derived  from  an  unlawful  act,  there  it  is  conso- 
nant to  the  spirit  and  policy  of  the  law  that  the  plaintiff  should  recover,  (r) 
There  are,  however,  some  cases,  notwithstanding  the  contract  is  executed,  in 
which  the  party  who  has  paid  money  under  it,  has  been  allowed  to  recover  it 
back  again :  for  though  in  all  illegal  contracts  there  is  a  degree  of  delinquency 
in  both  the  contracting  parties,  yet  it  is  deemed  expedient,  upon  principles  of 
public  policy,  in  order  to  prevent  the  repetition  of  crimes,  or  the  evasion  of  a 
public  act  of  parliament,  to  allow  the  party  paying  the  money  to  recover  it 
back  by  action  *of  indebitatus  assumpsit  for  money  had  and  received.  We 
will  now  consider  the  cases  upon  this  subject  under  the  following  subdivisions  : 


(of   Cole  v.  Gorcer,G  East  Rep.  110.  (q)  Doug.  470.     Cowp.  199,  200.  792. 

(p)   Wilder  v.  Griffin,  5  East  Rep.  141.  (r)   Vide  I  H.  Bl.  67. 

•361   •362 


352  On  Promises  To  Pay  Over  Money     [Part  II. 

1.  Of  Money  Received  upon  Illegal  Contracts  in  general.]      If  a 
man  gives  his  agent  money  to  expend  upon  an  illegal  transaction,   and  it  is  ex- 
pended accordingly,  no  action   lies  to  recover  it  back.     Thus,   where    money 
was  given  by  way  of  a  bribe,  Holt  Ch.  J.  said  :   "  That  though  he  who  receiv- 
ed it  ought  to  he  punished,  yet  he  who  gives  the  bribe  ought  not  to  be  encour- 
aged by  any  way  to  recover  it  back  again." (s)     But  in  the  case   of  Williams 
v.   Hcdley,(t)  which  was  an  action  for  money  had  and  received,  brought  to  re- 
cover back  money  paid  by  the  plaintiff  to   the   defendant  to   compromise  a  qui 
lam  action  of  usury,   brought  by   the   defendant   against  the  plaintiff  on  the 
ground  of  an  usurious  transaction  between  the  latter  and   one   Eagleton,  who 
had  become  bankrupt,  it  was  held  that  such   money  might  be   recovered  back 
by  the  plaintiff  in  this  form  of  action.       And   such  recovery  might  be  had,  al- 
though Eagleton's  assignees  had  before  recovered  from  the  defendant  the  mo- 
ney so  received  by  him,  as  money  received  to   their  use  (the  money  paid   by 
way  of  composition  being  at  the  time  stated  to  be  Eaglcton's  money)  ;  there 
being  no  evidence,  at  the  trial  of  this   cause,  to  show  that  the  present  plaintiff 
was  privy  to  that  suit.  And  Lord  Ellenborough  Ch.  J.,  in  delivering  the  opinion 
of  the  Court,  stated  the  case  as  follows  :   "  This  was  an  action  for  money  had 
and  received,  brought  to  recover  the  sum  of  965Z.  Os.  8d.  as  having  been  unduly 
obtained  by  the  defendant  from  the  plaintiff  under  an  agreement  to  compromise 
a  qui  tarn  action  for  penalties  of  usury,  brought  by  the  defendant  against  the  plain- 
tiff on  the  ground  of  certain  usurious  transactions  which  had  taken  place  between 
the  plaintiff  Williams  and  Eagleton.  This  sum  of  9651.  Os.  Sd.  was  the  amount 
of  the  debt  which  had   been  owing  from  Eagleton  to   Hedley  and  his  partner : 
and  the  jury  to  whom  the  question  was  left   at  the   trial,   found  that  the  pay- 
ment of  this  debt  of  Eagleton  by  the  plaintiff  to  the  defendant  was  obtained  from 
the  plaintiff  under  the  terror  of  the  above-mentioned  action  of  usury  brought  by 
the  defendant,  and   then  depending  against  him,  and  through  the  means  of  an 
agreement  between  the   parties   to   compromise  that  action  ;  and  the  plaintiff 
thereupon  recovered  a  verdict  against  the  defendant  for  the  amount  of  the  mo- 
ney he  had  so  obtained  from  him.     Upon  the  motion  for  a  new   trial   two  ob- 
jections have  been  taken  to  the  plaintiff's  right  to  recover.     The  first  was,  that 
the  plaintiff  was  in  pari  delicto  with  the  defendant,  as  to  the  illegal  compromise 
of  the  penal   action ;  and  on  that  account  not   entitled  to   recover.       The  sec- 
ond objection  was,  that  as  Eagletori's  assignees  had,    after  his  bankruptcy,  re- 
covered *this  money  against  the  defendant  and  his  partner,  as  money  received 
by  them  for  the  use  of  the   assignees,  the  plaintiff  could  not  now  recover  the 
money  against  the  defendant ;  the  plaintiff  having,  as  was  contended  on  behalf 
of  the  defendant,  enabled  Eagleton' s  assignees  to  recover  that  money  from  him 
and  his  partner,   and  thereby   estopped   himself  now  to  recover  it  from  the  de- 
fendant.    But  as  there  was  no  evidence  given  at  the  trial  of  any  act  done  on 
the  part  of  Williams,  the  plaintiff,   in  order  to  enable  the  assignees  to  recover, 


(*)  Vide  Skin.  412.  1  Salk.  22.  Cowp.792.     in  notis. 
But  see  1  Ld.  Raym.  89.  See  also  Doug.  697.         (<)  8  East  Rep.  S78. 

•363 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.      S63 

or  which  could  be  considered  as  rendering  him  in  any  degree  privy  to  that  suit, 
or  liable  for  its  consequences,  that  objection'fell  to  the  ground  for  want  of  its 
necessary  foundation  in  point  of  fact.  The  first  of  these  two  objections  is 
therefore  the  only  one  which  remains  to  be  considered.  The  answers  <nven  to 
it  on  the  part  of  the  plaintiff  were,  first,  that  the  plaintiff,  who  was  defendant  in 
the  action  for  usury,  was  not  prohibited  by  the  statute  18  Eliz.  c.  5.  s.  4.  from 
agreeing  to  this  composition,  and  paying  the  money  which  Hcdley  received 
under  it;  but  that  the  prohibition  and  penalties  of  the  statute,  in  this  respect, 
solely  attached  upon  and  were  confined  to  the  informer  or  plaintiff  in  the  penal 
action.  Assuming,  however,  that  the  defendant,  the  person  compounded  with, 
is  not  within  the  express  prohibitions  and  penalties  of  the  act,  it  is  still  con- 
tended, that  as  the  act  of  the  defendant  co-operated  with  that  of  the  plaintiff  in 
producing  the  mischief  meant  to  be  prevented  and  restrained  by  the  statute  in 
question,  it  is  so  far  illegal  on  the  part  of  the  defendant  himself,  as  to  preclude 
him  from  any  remedy  by  suit  to  recover  back  money  paid  by  him  in  furtherance 
of  that  object ;  and  that  if  he  be  not  therefore  to  be  considered  as  strictly  in 
pari  delicto  with  the  plaintiff,  he  is  at  any  rate  particeps  criminis,  and  in  that 
respect  not  entitled  to  recover  from  his  co-delinquent  money  which  he  had  paid 
him  in  the  course  and  prosecution  of  their  mutual  crime.  In  respect  to  the 
criminal  offence  of  compounding,  the  plaintiff  ~\Villiams  was  the  person  whose 
situation  was  taken  advantage  of  by  the  other  party  to  the  composition  ;  against 
which  party  the  prohibitions  and  penalties  of  the  statute  of  the  18  Eliz.  are 
particularly  levelled.  It  is  no  answer  to  this  that  Williams  the  plaintiff  had 
been  criminal  in  another  matter,  and  towards  another  person,  viz.  Eagleton,  in 
the  usurious  dealings  with  him  ;  for  that  criminality  was  perfectly  collateral 
to  the  offence  of  compounding  now  under  consideration  ;  and  his  very  con- 
sciousness of  those  usurious  dealings,  and  the  dread  of  the  consequences  which 
might  result  therefrom,  laid  him  more  completely  at  the  mercy  of  Hedlcy,  and 
enabled  him  to  effect  the  extortion  which  is  the  foundation  of  this  action.  In- 
deed if  the  objection  of  particeps  criminis  were  allowed  to  hold  in  its  full  ex- 
tent, none  of  the  cases  above-mentioned  could  have  been  determined  ;  nor  could 
the  party  paying  usurious  interest  recover  back  the  excess  beyond  legal  inte- 
rest, as  he  is  constantly  allowed  to  do  ;  and  which  *is  particularly  taken  notice 
of  by  Lord  Mansfield  in  his  judgment  in  the  case  of  Browning  v.  Morris.  («) 
Upon  the  authority  therefore  of  the  cases  which  have  been  cited,  as  applied  to 
the  facts  of  the  case  before  us  ;  and  founding  ourselves  upon  the  distinction 
taken  and  relied  upon  in  those  cases  in  favour  of  the  party  for  whose  benefit 
the  provisions  of  the  law,  which  has  been  violated,  were  peculiarly  made,  and 
of  whose  situation  advantage  has  been  unduly  taken  ;  we  are  of  opinion  that 
this  action  was,  under  the  circumstances  of  this  case,  maintainable  ;  and  there- 
fore that  the  rule  for  a  new  trial  must  be  discharged." 

O 

Money  paid  in  respect  of  transferrable  shares  in  an  unincorporated  compa- 


(«)  Cowp.  792. 

*364 


S64  On  Promises   To  Pay  Over  Money       [Part  II. 

ny,  cannot  be  recovered  back ;  the  society   being   illegal    and   within  the  sta- 
tute 6  Geo.  1.  c.  18.,  and  the  parties  in  pari  delicto,  (v) 

So,  in  the  case  of  Davis  v.  Edgar,(ic)  where  the  plaintiff,  who  was  not  an 
authorized  army  agent,  negotiated  the  sale  and  purchase  of  a  commission  be- 
tween G.  C.  and  the  defendant,  at  a  price  above  that  allowed  by  his  Majesty's 
regulations  ;  and  the  defendant,  who  was  purchaser  of  the  commission,  after 
having  paid  a  sum  exceeding  the  regulation  price  to  G.  0.,  retained  the  38/., 
the  remainder  of  the  price  agreed  upon,  with  directions  from  G.  C.  to  pay  it 
over  to  the  plaintiff  for  his  agency,  which  he  promised  the  plaintiff  to  do. 
Held  that  the  plaintiff  could  not  recover  against  the  defendant  the  38/.,  as 
money  had  and  received  to  his  use,  for  he  could  not  be  in  a  better  situation 
than  G.  C.  ;  and  by  48  Geo.  3.  c.  15.  s.  100.,  G.  C.  could  not  have  recovered 
beyond  the  regulation  price. 

So,  in  the  case  of  Stokes  v.  Twitcher,(x)  where  money  was  paid  as  a  pre- 
mium for  an  apprentice  by  a  parent  to  a  master  under  an  indenture,  cannot  be 
recovered  back  if  such  indenture  be  void  for  not  having  the  amount  of  the  pre- 
mium inserted  therein,  although  the  statutes  relative  to  the  duties  payable  on 
such  indentures  impose  a  penalty  on  the  master  alone  for  such  omission  ;  as 
the  parent  by  executing  the  instrument  must  be  considered  to  be  aware  of  its 
illegality,  and  therefore  in  pari  delicto  with  the  master. 

So,  in  the  case  of  Pickard  v.  Bonner,[y)  which  was  also  an  action  of  indebi- 
tatus assumpsit  for  money  had  and  received  ;  the  facts  were  as  follow  :  Mr  Bon- 
ner, the  defendant,  having  a  considerable  place  in  the  post-office,  and  having  oc- 
casion to  employ  several  persons  as  clerks  to  him  ;  the  plaintiff  applied  to  one 
Morris,  who  was  chief  clerk  in  the  defendant's  office,  to  procure  him  such  a 
situation,  and  agreed  to  give  1007.  as  a  consideration  for  procuring  the  place. 
It  was  agreed  that  the  plaintiff  should  go  into  the  defendant's  office,  and  con- 
tinue there  six  months  on  trial  ;  that  he  should  have  at  the  rate  of  80/.  per  annum 
•for  that  time,  and  afterwards  a  further  salary,  if  the  service  continued.  After- 
wards the  contract  broke  off,  and  it  being  discovered  that  Morris  had  paid  this 
money  over  to  the  defendant,  this  action  was  brought  to  recover  it  back. 
Morris  was  called  as  a  witness,  and  he  swore  that  he  did  not  receive  this  money 
on  account  of  the  defendant,  but  entirely  on  his  own  account,  and  that  he  paid 
it  to  the  defendant  in  part  of  a  debt  due  from  him  to  the  defendant,  of  course 
this  action  could  not  be  supported.  But  Lord  Kenyon  Ch.  J.  said,  "  That  had 
it  been  proved  that  this  was  a  transaction  between  the  plaintiff  and  the  defen- 
dant,' the  money  could  not,  according  to  the  doctrine  which  had  been  laid  down 
by  Lord  Mansfield,  be  recovered  back  ;  for  it  being  for  the  purchase  of  a  place 
under  government  would  be  illegal,  and  therefore  the  parties  being  in  pari 
delicto,  the  plaintiff  could  not  succeed  in  a  court  of  justice.  Lord  Holt  had 
been  of  opinion  that  such  an  action  might  be  maintained  ;  and  his  lordship  said. 


(t)  Buck  v.  Buck,  1  Campb.  547.  (x)  2  Mo.  538.  et  ante  324. 

(u)  4  Taunt.  63.  («/)  Peake's  Ca».  N.  P.  221, 

*363 


Chap.  4.]    Had  and  Received  to  the  Use  of  Another.      365 

he  was  inclined  to  agree  with  that  opinion,  though  he  certainly  spoke  with 
great  diffidence  when  giving  an  opinion  contrary  to  that  of  Lord  Mansfield  ; 
but  he  thought  it  would  bs  much  more  for  the  benefit  of  the  public,  if  a  person 
who  had  paid  his  money  under  such  a  contract  were  permitted  to  recover  it 
back. 

But  in  the  case  of  Walker  v.  Chapman,  {z)  where  a  sum  of  money  had  been 
paid,  in  order  to  procure  a  place  in  the  customs  ;  but  the  place  had  not  been 
procured  ;  and  the  party  who  paid  the  money  having  brought  his  action  to 
recover  it  back,  it  was  held,  that  he  should  recover  because  the  contract  con- 
tinued executory.  So,  where  a  person  receives  money  to  the  use  of  another  on 
an  illegal  contract,  he  is  not  allowed  to  retain  it,  but  must  pay  it  over  to  the 
person  for  whose  use  he  received  it.  (a) 

2.  Of  Usurious  Interest  Receivkd.]  By  the  stat.  12  Ann,  stat.  2.  c.  16. 
the  taking  of  more  than  5/.  percent,  is  declared  illegal,  and  the  contract  void  ; 
the  borrower,  therefore,  if  he  pays  more  thin  legal  interest  may  recover  back  the 
excess  :{b)  for  this  statute,  it  is  said  (c)  was  made  to  protect  needy  and  neces- 
sitous persons  from  the  oppression  of  usurers  and  monied  men,  who  are  eager  to 
take  advantage  of  the  distress  of  others  :  whilst  they,  on  the  other  hand,  from  the 
pressure  of  their  distress,  are  ready  to  come  into  any  terms,  and  with  their 
eyes  open  not  only  break  the  law,  but  complete  their  own  ruin.  The  borrower, 
however,  cannot  avoid  the  contract  and  recover  the  principal  and  legal  interest, 
but  only  the  excess  of  interest ;  although  the  lender  is  liable  upon  the  statute, 
if  convicted,  to  the  penalty  of  treble  the  sum  lent,  which  can  only  be  recovered 
by  action  of  debt,  (d) 

*It  is,  indeed,  reported  in  the  case  of  Tomhins  v.  Bernet,{e)  that  where  three 
were  bound  in  an  usurious  obligation,  one  of  them  paid  some  part  of  the  money, 
and  afterwards  the  obligee  brought  debt  against  another  of  the  obligors,  who 
pleaded  the  statute  of  usury,  and  avoided  the  bond  :  and  now  the  obligor  that 
had  paid  some  part  of  the  money  without  cause  to  the  obligee,  brought  an 
indebitatus  assumpsit  against  him  to  recover  back  that  money;  Treby  Ch.  J. 
allowed,  that  where  a  man  pays  money  on  a  mistake  in  an  account,  or  where 
one  pays  money  under  or  by  a  mere  deceit,  it  is  reasonable  he  should  have  his 
money  again  ;  but  where  one  knowingly  pays  money  upon  an  illegal  consider- 
ation, the  party  that  receives  it  ought  to  be  punished  for  his  offence ;  and  the 
party  who  pays  it  is  particeps  criminis,  and  there  is  no  reason  that  he  should 
have  his  money  again  ;  for  he  parted  with  it  freely,  and  volenti  non  Jit  injuria. 
But  in  Smith  v.  Bromley, (f)  Lord  Mansfield  makes  the  following  observa- 
tion upon  the  case  of  Tomkins  v.  Bernet,  "  This  case  has  been  often  mention- 
ed, and  I  have  often  had  occasion  to  look   into  it ;  but  it  is  so  loosely  reported, 


(r)  Loft  342.  and  ci*nd  by  Ld.  Mansfield,  Term  Rep.  153. 

in  Doug  471.  et  vido  Hogan  v.  Shee,  ante  (c)  Per  Lord  Mansfield,  Cowp.  792. 

**?•      ,  (d)  Douw.  697.  in  notis. 

(a)  Vide  Tenant  v.  Elliot,  1  Bos.  &  Pul.  3.  (e)  1  Salk.  22. 

Fanner  v.  Russel,  ib.  296.  (/ )  Dou2.  697.  in  noiti.     See  also  Cowp. 

(6)    Bosanquet  v.  Dashwood,   Cas.   Temp.  200. 
Talbot,  38.    See  also  fitzroy  v.   Gtoillim,  J 

45  *366 


366  On  Promises  To  Pay  Over  Money         [Part  II. 

and  stuffed  with  such  strange  arguments,  that  it  is  difficult  to  make  any  thing  of 
it.  One  book(g-)  says  it  was  determined  by  Lord  Holt  ;  another  (h)  by  Lord 
Treby.  Certain  it  is,  it  was  only  a  nisi  priiis  case.  I  think  the  judgment 
may  have  been  right,  but  the  reporter, (Salkeld,)  not  properly  acquainted  with 
he  facts,  has  recourse  to  false  reasons  in  support  of  it.  The  case  must  have 
been,  as  I  take  it,  an  action  to  recover  back  what  had  been  paid  in  part  of 
principal  and  legal  interest,  upon  an  usurious  contract  ;  and  therefore  the  action 
would  not  lie;  for  so  far  as  principal  and  legal  interest  went,  the  debtor  was 
obliged,  in  natural  justice,  to  pay,  therefore  he  could  not  recover  it  back.  But 
for  all  above  legal  interest,  equity  will  assist  the  debtor  to  retain,  if  not  paid,, 
or  an  action  will  lie  to  recover  back  the  surplus,  if  the  whole  has  been  paid. 
The  reporter,  not  seeing  this  distinction,  has  given  the  absurd  reason,  that 
volenti  non  Jit  injuria  ;  and,  therefore,  the  man,  who  from  mere  necessity, 
pays  more  than  the  other  can,  in  justice,  demand,  and  who  is  called,  in  some 
books,  the  slave  of  the  lender,  shall  be  said  to  pay  it  willingly,  and  have  no 
right  to  recover  it  back ;  and  the  lender  shall  retain ;  though  it  is  in  order  to 
prevent  this  oppression  and  advantage  taken  of  the  necessity  of  others,  that  the 
law  has  made  it  penal  for  him  to  take. 

So,  when  exorbitant  and  illegal  interest  is  received  upon  a  pledge,  indebi- 
tatus assumpsit  lies  to  recover  it  back.(?) 

As  the  plaintiff,  in  this  form  of  action,  must  make  out  an  equitable  *title 
to  recover,  so  the  defendant  may  repel  it  by  circumstances  which  will,  in  equi- 
ty, constitute  a  defence.  Thus,  in  the  case  of  Jestons  v.  Brooke,{k)  which 
was  an  action  for  money  had  and  received ;  and  upon  a  rule  to  show  cause  why 
the  verdict  obtained  for  the  plaintiff  should  not  be  set  aside,  and  a  nonsuit  en- 
tered, Lord  Mansfield  reported  as  follows  :  "  The  plaintiff  and  defendant 
were  both  brokers  :  the  defendant  wanted  to  purchase  a  parcel  of  goods  which 
had  been  distrained  for  rent,  but  had  no  money.  He  applied  therefore  to  the 
plaintiff,  who  on  the  12th  of  November,  1777,  lent  him  451.  upon  his  note  of 
hand,  payable  on  demand.  At  the  same  time  it  was  agreed  that  the  plaintiff 
should  have  half  of  the  net  profits,  which  should  be  made  of  the  goods,  upon 
the  resale  of  them,  over  and  above  the  note  of  hand.  Two  hours  after  the 
sale,  payment  of  the  note  of  hand  was  demanded  by  the  plaintiff,  in  order  to 
force  the  defendant  to  sell  the  whole  of  the  goods  to  him ;  and,  as  an  induce- 
ment, the  plaintiff  offered  him  3/.  profit,  which  the  defendant  refused ;  and  sold 
the  goods  afterwards  for  5/.  profit.  The  plaintiff  paid  the  451.  to  the  landlord, 
by  the  direction  of  the  defendant,  and  put  a  man  into  possession  on  the  night  of 
the  sale,  The  note  was  repaid  on  the  21st  of  the  same  month.  This  action 
was  brought  for  21.  10s.  the  half  of  the  net  profits  for  which  the  goods  were 
resold.  Towards  the  end  of  the  cause  it  struck  me,  that  this  contract  was  usu- 
rious on  the  part  of  the  plaintiff,   because  he  was  to  have  half  of  the   profits, 


(?)  Skin.  41).  Fitzroyv.  Gwillim,  1  Term  Rep.  153. 

(h)   1  8;ilk.2-2.  (fc)  Cowp.793. 

htley  v.  Reynolds,  ante  339.     P.-r-  also 

*367 


Chap.  4-]  Had  and  Received  to  the  Use  of  Another.     367 

and  was  to  run  no  risk."  The  jury  found  a  verdict  for  the  plaintiff,  subject  to 
the  opinion  of  the  court,  upon  the  question,  whether  this  contract  was  usurious 
or  not  ?  The  Court  were  of  opinion,  that  the  demand  of  the  surplus  was  an 
exorbitant  demand,  and  therefore  ought  not  to  be  recovered.  And  Lord  Mans- 
field said  :  "  This  is  an  action  for  money  had  and  received  ;  and  therefore  it  is 
analogous  to  a  bill  in  equity.  The  ground  of  the  action  is  to  recover  half 
the  net  profits  arising  by  the  resale  of  certain  goods  purchased  by  the  de- 
fendants, as  stated  in  the  report.  The  general  question  is,  whether  the  plaintiff 
ought  to  recover  in  an  action  for  money  had  and  received  ?  that  is,  whether  it  is 
against  conscience  that  the  defendant  should  retain  the  whole  profits  of  the 
goods  in  question  to  himself  ?  There  are  two  grounds,  either  of  which  is  an 
answer  to  the  action.  1st.  If  the  contract  be  usurious  within  the  statute  ;  or, 
2d.  Though  not  usury  within  the  statute,  if  it  be  an  unconscionable  bargain. 

l*  Now  to  consider  this  case  in  the  light  of  an  usurious  contract ;  There  is 
3io  contrivance  whatever  by  which  a  man  can  cover  usury.  Here  are  two 
brokers.  One,  who  is  the  defendant,  wants  to  buy  goods  that  were  upon  sale  ; 
and  the  other  agrees  to  lend  him  money  for  that  purpose  ;  but  he  is  to  lend  it 
upon  the  terms  of  being  paid  both  principal  *and  interest  from  the  time  the 
loan  commenced.  It  is  true,  no  rate  of  interest  is  reserved  in  the  note  ;  but 
is  made  payable  on  demand  :  from  the  moment  of  demand  therefore,  it  would 
carry  interest  ;  and  the  plaintiff  had  it  in  his  power  to  make  a  demand,  the  ve- 
ry instant  the  bill  was  delivered.  Besides  this,  he  does  not  even  trust  the  de- 
fendant with  the  possession  of  the  money  in  his  own  hands.  But  when  the 
goods  are  bought,  and  not  before,  he  pays  the  money  to  the  landlord  for  the  de- 
fendant. Within  two  hours  after  he  demands  the  money,  and  then  the  note  begins 
to  carry  interest.  He  was  not  bound  by  the  agreement  to  give  credit  for  a  mo- 
ment. So  that  there  was  no  sort  of  risk  whatsoever ;  and,  in  fact,  as  soon  as 
the  money  was  paid,  a  man  was  put  into  possession  for  himself;  as  well  as  for 
the  defendant,  the  note  therefore  was  payable,  with  interest  from  the  time  of 
demanding  payment,  and  he  has  possession  of  the  goods  :  that  was  manifestly 
with  a  view  to  secure  to  himself  the  surplus  advantage  which  he  had  stipulated 
for  upon  a  resale.  Both  parties,  from  their  situation,  knew  there  would  neces- 
sarily be  a  profit.  It  seems  tome,  therefore,  that  the  intention  of  the  contract 
was  to  get  more  than  principal  and  legal  interest  upon  the  note,  which  is 
usury  within  the  meaning  of  the  statute.  But  suppose  it  were  not  strictly  usuri- 
ous, shall  a  man,  in  an  action  for  money  had  and  received,  which  is  an  'equita- 
ble action,  and  founded  in  conscience,  recover  an  unmeasurable  and  exorbitant 
demand  as  this  ?  Most  clearly  he  shall  rrot.  Therefore,  upon  either  ground, 
the  verdict  must  be  set  aside,  and  the  nonsuit  entered," 

3.  Of  Money  Paid  to  a  Creditor  for  signing  a  Bankrupt's  Cer- 
tificate, or  a  Composition  Deed,  &c] — By  the  stat.  5  Geo.  2.  c.  30.  s. 
11.  "Every  contract  or  agreement  made  with,  or  security  given  from  the 
bankrupt  himself,  or  any  person  on  his  behalf,  as  the  consideration  for  signing 
his  certificate,  is  absolutely  void."     And   it  has  been  determined,  that  where 

*368 


368  On  Promises  To  Pay  Over  Money      [Part  II. 

money  is  paid  to  a  creditor,  as  a  consideration  for  signing  the  certificate  of  a 
bankrupt,  it  may  be  recovered  back  by  an  action  of  indebitatus  assumpsit : 
for  where  contracts  or  transactions  are  made  void  by  positive  statutes,  for  the 
sake  of  protecting  one  set  of  men  from  another  ;  the  one,  from  their  situation 
and  condition,  being  liable  to  be  oppressed  or  imposed  upon  by  the  other  ;  there 
the  parties  are  not  considered  in  pari  delicto. 

Thus,  in  the  case  of  Smith  v.  Bromley,  (/)  which  was  an  action  for  money 
had  and  received  to  the  plaintiff's  use  under  the  following  circumstances : 
The  plaintiff's  brother  having  committed  an  act  of  bankruptcy,  ihe  defendant 
being  his  chief  creditor  took  out  a  commission  against  him,  but  afterwards 
finding  no  dividend  likely  to  be  made,  refused  *to  sign  his  certificate. 
But  on  frequent  application  and  earnest  intreaties  made  by  the  bankrupt  to  one 
Oliver,  a  tradesman  in  town  and  an  intimate  friend  of  the  defendant,  who  lived 
in  Cheshire,  he  got  Oliver  to  write  to  the  defendant  several  times  ;  and  he  at  last 
prevailed  on  the  defendant  to  send  hhn  (Oliver)  a  letter  of  attorney  empowering 
him  to  sign  the  certificate,  which  Oliver  would  not  do,  unless  the  bankrupt  or 
somebody  for  him,  would  advance  401.,  and  give  a  note  for  201.  more,  and  which, 
on  Oliver's  signing  the  certificate  for  the  defendant,  the  plaintiff,  (who  was  the 
bankrupt's  sister)  paid,  and  gave  to  Oliver  accordingly,  who  the)  eupon  gave 
her  a  receipt  for  the  money,  promising  to  return  it  if  the  certificate  was  not 
allowed  by  the  Chancellor  :  the  certificate,  however,  was  allowed.  The  plain- 
tiff afterwards  brought  her  action  against  Oliver  to  recover  back  the  40/.  ; 
but  that  action  coming  on  to  be  tried  before  Lord  Mansfield  at  Guildhall,  at 
the  sittings  after  last  Trinity  Term,  1759,  and  it  then  appearing  that  Oliver  had 
actually  paid  over  or  accounted  for  the  40/.  to  Bromley,  and  his  lordship  being 
clearly  of  opinion,  that  such  action  would  not  lie  against  the  plaintiff's  own 
agent,  who  had  actually  applied  the  money  to  the  purpose  for  which  it  was 
paid  to  him,  the  plaintiff  was  nonsuited,  and  therefore  brought  the  present  ac- 
tion against  Bromley  himself,  which  coming  on  to  be  tried,  it  was  proved  that 
the  money  was  received  by  Oliver,  and  paid  over  to  the  defendant. 

Tt  was  contended  for  the  plaintiff,  that  this  money  was  paid  either  without 
consideration,  or  upon  one  that  was  illegal;  and  in  either  case  was  lecoverable 
back  by  this  action.  For  the  defendant  it  was  argued,  that  there  was  certainly 
a  consideration  for  the  payment  of  the  money,  to  wit,  the  signing  of  the  bank- 
rupt's certificate  ;  that  if  this  consideration  was  illegal,  the  plaintiff  was  parti- 
ceps  criminis ;  and  had  paid  it  voluntarily,  knowingly,  and  without  any  de- 
ceit. But  Lord  Mansfield  was  of  a  different  opinion,  and  said  :  "It  was  ini- 
quitous and  illegal  in  the  defendant  to  take,  and  therefore  it  was  so  to  detain, 
this  40/.  If  a  man  makes  use  of  what  is  in  his  own  power  to  extort  money 
from  one  in  distress,  it  is  certainly  illegal  and  oppressive,  and  whether  it  was 
the  bankrupt  or  his  sister  that  paid  the  money  it  is  the  same  thing.  The  taking 
money  for  signing  of  certificates  is  either  an  oppression  on  the  bankrupt  or  his 


(I)  Sittings  at  Guildhall  after  East.  17C0.  coram  Ld.  Mansfield,  reported  in  Doug.  6S6.  n. 
3.     See  aho  Jones  v.  Barthy,  ib.  695.  n.  3.   Stock  v.  Mawson,  1  Bos.  &  Pul.  S86.  S.  P. 
•369 


Chap.  4.]  Had  and  Received  to  the  Use  of   Another-     869 

family,  or  a  fraud  on  his  other  creditors.  It  was  a  thing  wrong  in  itself  before 
any  provision  was  made  against  it  by  the  statute  ;  for  if  the  bankru  )t  has  con- 
formed to  all  that  the  laws  require  of  him,  and  has  fairly  given  up  his  all,  the 
creditor  ought,  in  justice,  to  sign  his  certificate  ;  but,  on  the  other  hand,  if  the 
bankrupt  has  been  guilty  of  any  fraud  or  concealment,  the  creditor  ouo-ht  not 
to  sign  for  any  consideration  whatever.  If  any  near  relation  is  induced  to  pay 
the  money  for  the  bankrupt,  it  is  taking  an  unfair  advantage,  and  torturing 
the  compassion  of  his  family ;  if  it  is  the  money  of  the  bankrupt  himself  it 
*is  giving  one  creditor  his  debt  to  the  exclusion  of  the  others,  and  a  fraud  upon 
them.  As  to  the  case  cited  from  Peere  Williams,  620,  that  only  affected  the 
person  who  petitioned.  There  might  have  been  sufficient  of  the  creditors  in 
number  and  value  to  sign  without  him,  and  he  had  a  right  to  compromise  it  upon 
what  terms  he  pleased.  The  petitioning,  or  not,  was  entirely  in  his  own 
power,  and  not  like  the  present  case.  It  is  argued,  that  as  the  plaintiff  founds 
her  claim  on  an  illegal  act,  she  shall  not  have  relief  in  a  court  of  justice.  But  she 
did  not  apply  to  the  defendant  or  his  agent  to  sign  the  certificate  on  an  improp- 
er or  illegal  consideration,  but  as  the  defendant  insisted  upon  it,  she  in  com- 
passion to  her  brother  paid  what  he  required.  If  the  act  is  in  itself  immoral 
or  a  violation  of  the  general  laws  of  public  policy,  there  the  party  paying 
shall  not  have  this  action  ;  for  where  both  parties  are  equally  criminal  against 
such  general  laws,  the  rule  is, potior  est  conditio  defendcntis.  But  there  are 
other  laws  which  are  calculated  for  the  protection  of  the  subject  against  oppres- 
sion, extortion,  deceit,  &c.  If  such  laws  are  violated,  and  the  defendant  takes 
advantage  of  the  plaintiff's  condition  or  situation,  there  the  plaintiff  shall  re- 
cover :  and  it  is  astonishing  that  the  reports  do  not  distinguish  between  the  vio- 
lation of  one  sort  and  the  other."  The  jury,  under  his  lordship's  direction,  found 
a  verdict  for  the  plaintiff,  40/.  damages. 

So,  where  a  creditor,  after  having  signed  a  composition  deed,  prevailed 
upon  his  debtor  to  accept  bills  to  the  full  amount  of  his  debt,  and  aftei  wards 
received  payment  thereof,  it  was  held,  that  such  an  arrangement  is  fraudu- 
lent, and  that  he  is  bound  to  refund  to  his  debtor  the  excess  beyond  the 
composition.  Thus,  in  the  case  of  Turner  v.  Hoolc,(?n)  which  was  an 
action  of  assumpsit  for  money  had  and  received,  tried  at  Guildhall  sittings 
after  Hilary  Term,  1822,  before  Abbott  Ch.  J.  And  the  facts  proved  were 
as  follow:  In  December,  1820,  the  plaintiff  having  become  insolvent,  proposed 
to  his  creditors,  of  whom  the  defendant  was  one,  to  enter  into  a  composition 
deed  to  receive  lis.  in  the  pound  in  full  satisfaction  of  his  debts  :  his  attorney 
waited  upon  the  defendant  with  this  proposal,  who  then  said,  that  he  would  do 
as  the  other  creditors  did  ;  but  at  a  subsequent  interview,  stated  that  he 
would  not  sign  the  deed  unless  he  was  guaranteed  his  debt  in  full.  He  did, 
however,  sign  the  deed  on  the  2nd  of  Jam/art/,  1821,  but  afterwards  in- 
duced the  plaintiff  to  accept  bills  to  the  full  amount  of  his  debt,  which,  though 


(m)  Dowl.  &  Ryl.  Ni.  Pri  Cas.  27.  bound  up  in  Vol.  2.  of  theii  Reports  in  K.  B. 

*370 


S70  On  Promises  To  Pay  Over  Money       [Part  II. 

dated  on  the  1st  January,  before  the  date  of  the  composition  deed,  were  in  fact 
drawn  after  that  period.     The  defendant  did  not  attend  the  meeting  of  creditors. 
In  March,  the  plaintiff's   attorney  again    called    upon  the    defendant,   and  ten- 
dered him  an    instalment  of   3s.    in   the   pound,    when  the    defendant   told 
him  that  he  *had  bills  from  the  plaintiff  to  the  full  amount  of  his  debt,  and 
that  he  would  not  receive   the   instalment  as  a  composition,   though  he  was 
willing  to  accept  it  on  account  generally.     He  in  fact  retained  the  money,  and 
being  afterwards   desired  to  return  it,  or  give  a  receipt  for  it,  as  an  instalment 
of  the  composition  money,   refused  to  do  either.     The  defendant  was   not  paid 
any  farther  sum  under  the  composition  deed,  but  proceeded  against  the  plaintiff 
upon  the  bills,  who  in  consequence  paid  them  all,  deducting  the  amount   of  the 
first  instalment :  and  the  present  action  was  brought  to  recover  the  sum   of  18 
guineas,  being  the   amount  of  6s.  in   the  pound  upon    the  defendant's  original 
debt  of  63/.  over  and  above  the   sum  agreed  upon  by  the  composition  deed  ; 
namely,  14s.   in  the  pound.     It  was    contended  for  the  defendant,  that  the  ac- 
tion could  not  be   maintained  :  the  defendant  had,  in  fact,  never  received  any 
thing  under  the  composition  deed  ;  for  at  the  moment  of  the  payment,  he  de- 
clared that  he  received  it  generally  on  account  of  his  claim.     The  plaintiff  had 
accepted  bills  to  the  full   amount   of  that  claim  dated  prior  to   the  date  of  the 
deed  ;  he  had  subsequently  paid  those  bills  ;  and  he  could  not  now  be  allowed 
by  the  present  action  to  repudiate  his  own  contracts,  and  annul  his  own    acts. 
But  Abbott  Ch.  J.  ruled  the  contrary :  and  his  lordship   said,  "  The  law  upon 
this  subject  has  been  long  established,  and  is  in  my  opinion  a  wise  and  equitable 
law.     The  object  of  it  is   this,  that  one   creditor  shall  not  be   allowed  to  get 
hold  of  all  the  property  of  an  insolvent,  so  as  to  oppress   a  falling  man  on  the 
one  hand,  and  to   injure  the  rest  of  the  creditors  on    the  other.     The    case  is 
clearly  within  the  scope  of  the  law.     The  defendant  signs  the  deed,  and  agrees 
to  accept  14s.  in  the  pound  in  satisfaction  of  his  debt,  but  afterwards  contrives 
to  obtain  from  the  plaintiff  bills  for  the  whole,  and  which  are  afterwards  paid. 
I  am  of  opinion  that  he  had  no  right  to  do  this.     It   was  a  fraud  either   upon 
the  insolvent,  or  upon  the  other  creditors ;  and  therefore  I  think  he  is  liable  to 
refund  the  surplus  which  he  has    so  received,  namely,  the  6s.  in  the  pound." 
And  the  jury  gave  a  verdict  for  the  plaintiff  accordingly  for  the  amount. 

4.  Of  Money  Received  ox  Illegal  Wagers,  &c.]—  If  a  wager  be  made 
on  a  boxing  match,  and  on  the  event  happening,  the  winner  receives  the  mon- 
ey, it  cannot  be  recovered  back  by  the  loser :  for  where  one  knowingly  pays 
money  upon  a  consideration  executed,  which  is  in  itself  immoral  and  illegal, 
and  where  the  parties  aie  equally  criminal,  the  rule  is,  in  pari  delicto,  potior 
est  conditio  defendentis,  not  because  the  defendant  is  more  favoured,  or  entitled 
in  conscience  to  retain  the  money,  but  because  the  plaintiff  cannot  make  out  a 
conscientious  claim  to  recover  it  back.(») 

But  where  money  is  paid  upon  an  illegal  wager,  and  the  person  paying  *it 

(>i)  Vide  Bui.  N.  P.  132.  Cowp.  792.  Vide  ante,  272.  as   to  money  deposited  with  stake- 
holders on  illegal  wagers,  &c. 
*371   *372 


Chap.  4.]     Had  and  Received  to  the  Use  of  Another,  372 

wishes,  before  the  event  happens  which  is  to  decide  the  wager,  to  put  an  end  to 
the  wager  altogether,  he  may  do  so,  and  recover  back  the  money  so  paid  by 
action  of  indebitatus  assumpsit.  Thus,  in  the  case  of  Tappenden  and  oth- 
ers, assignees  of  Bray  v.  Randall,{o)  which  was  an  action  of  indebitatus  as- 
sumpsit for  money  had  and  received  :  at  the  trial  a  verdict  was  found  for  the 
plaintiffs,  damages  216Z.,  subject  to  the  opinion  of  the  Court  of  Common  Pleas, 
on  the  following  case :  "  Bray  duly  became  bankrupt,  and  a  commission  was 
issued  against  him,  under  which  the  plaintiffs  were  declared  his  assignees. 
On  the  12th  November,  1800,  previous  to  any  act  of  bankruptcy,  in  considera- 
tion of  210Z.  then  paid  by  Bray  to  the  defendant,  the  defendant  entered  into 
a  bond  in  the  penal  sum  of  999/.,  conditioned  that  if  the  said  William  Randall 
shall  and  do,  from  the  day  of  the  date  of  the  above  bond,  well  and  truly  pay 
or  cause  to  be  paid  unto  the  said  John  Bray,  or  his  assignees,  one  annuity,  or 
clear  yearly  sum  of  105/.  of  lawful  money  of  Great  Britain,  on  the  1st  day 
of  May  in  each  and  every  year,  until  the  said  William  Randall  shall  prove, 
by  evidence  or  otherwise,  by  the  report  of  three  eminent  hop  merchants,  who 
shall  make  it  appear  to  the  satisfaction  of  the  said  John  Bray  or  his  assigns, 
that  the  revenues  received  by  government  by  reason  of  the  duties  now  assessed 
by  parliament  upon  hops,  shall,  in  the  present  or  any  one  year  hereafter, 
amount  to  a  full  and  clear  revenue  or  sum  of  200,000/.,  then  the  above-writ- 
ten bond  or  obligation  should  be  void,  &c.  Before  the  bringing  of  this  action 
the  plaintiffs  applied  to  the  defendant,  stating  that  they  considered  the  bond 
to  be  illegal,  and  demanding  the  return  of  the  210Z.  and  6/.  interest,  which  was 
refused. 

Lord  Alvanlcy  Ch.  J.  said,  "  It  appears  to  me  to  be  clear  that  the  plaintiffs 
in  this  case  are  entitled  to  recover  back  the  money  which  has  been  advanced 
by  the  bankrupt.  In  the  present  transaction  there  was  no  moral  turpitude 
whatever :  and  though  it  has  sometimes  been  held,  that  where  there  is  moral 
turpitude  in  the  contract,  the  court  will  not  allow  the  party  who  has  advanced 
money  on  such  a  contract  to  recover  it  back  ;  yet  no  argument  of  that  sort 
can  be  urged  in  the  present  case.  The  simple  statement  of  this  case  is, 
that  after  the  money  had  been  paid,  but  before  the  time  had  arrived  at  which 
the  event  in  contemplation  of  the  parties  contracting  was  to  take  place,  it  was 
found  out  that  the  contract  was  illegal ;  and  therefore  the  money  paid  was  de- 
manded back  again.  There  is  hardly  any  case  of  this  sort  in  which  the  dis- 
tinction between  immoral  and  illegal  transactions  has  not  been  taken.  I  do 
think  that  there  is  a  material  distinction  between  wagers  which  are  not  recover- 
able on  account  of  some  inconvenience  which  the  public  may  sustain  by  the 
open  discussion  of  the  questions  to  which  they  give  rise,  and  *those  which  are 
in  themselves  immoral.  In  the  present  case  one  party  has  paid  money  with- 
out any  consideration,  and  is  therefore  entitled  to  recover  it  back  from  the  par- 
ty to  whom  he  paid  it."     The  other  judges  were  of  the  same  opinion ;    but 


(o)  2  Bos.  &  Pul.  467.  See  also  Busk  v.  Walsh,  4  Taunt.  290.  S.  P. 

*373 


S73  On  Promises  To  Pay  Over  Money  [Part  II. 

the  Court  observed,  that  in  an  action  for  money  had  and  received,  nothing  but 
the  net  sum  advanced,  without  interest,  could  be  recovered  ;  and  that  the 
verdict  must  therefore  be  entered  for  the  210/.  only. 

So,  in  Aubert  v.  Walsh,(p)  the  same  point  was  determined:  and  Mansfield 
Ch.  J.  in  delivering  the  opinion  of  the  Court,  said,  "  This  is  an  action  on  a  wa- 
ger brought  to  recover  back  the  premiums  paid  ;  and  it  is  resisted  on  the  ground 
that  it  is  an  illegal  wager,  and  that  before  the  period  at  which  the  wager  was 
to  be  determined,  the  plaintiff  claimed  the  money  which  he  had  advanced  to  be 
repaid.  There  have  been  many  cases  cited,  to  prove  that,  in  the  case  of  pay. 
ment  of  money  on  illegal  transactions,  potior  est  conditio  possidentis;  but  the 
distinction  is  taken  here,  that  the  demand  of  the  money  back,  before  the  day, 
was  a  rescinding  of  the  illegal  contract.  There  is,  however,  some  doubt  on  the 
soundness  of  that  distinction,  unless  accompanied  with  some  qualification,  for  it 
does  not  clearly  appear  what  is  the  period  before  which  the  contract  may  be  re- 
scinded ;  because  a  man  may  wait  till  the  event  of  the  wager  may  be  very 
clearly  known  and  foreseen  ;  and  may  he  then  rescind  the  contract  and  save 
his  money  ?  However,  in  Lowry  v.  Bourdieu,  Buller  Just,  took  the  distinction 
between  a  case  where  the  event  had  happened,  and  where  a  man  had  taken  his 
chance  of  winning,  and  the  case  where  he  had  not ;  and  that  distinction  was 
expressly  adopted  by  the  judges  of  this  Court  in  Tappenden  v.  Randall, (q) 
which  was  most  clearly  decided  on  that  ground  ;  and  subject  to  the  observa- 
tion above  made,  I  think  there  is  good  sense  in  that  distinction  :  and  why  should 
not  a  man  say,  you  and  I  have  agreed  so  and  so,  but  the  agreement  is  good  for 
nothing;  I  cannot  bind  you,  and  you  cannot  bind  me,  and  therefore  I  desire, 
before  the  event  happens,  that  you  will  pay  me  back  my  money :  this  is,  in 
fact,  a  relieving  against  the  effects  which  an  illegal  contract  persevered  in 
would  produce.  We,  therefore,  are  of  opinion  that  this  distinction  must  be  sup- 
ported." 

But  where  A.  illegally  betted  25  guineas  with  B.  on  a  horse-race,  of  which 
C,  at  his  own  request,  staked  ten.  A.  won,  and  paid  C.  ten  guineas,  in  the 
expectation  of  receiving  the  whole  amount  of  the  bet  from  B.  B.,  however, 
died,  and  A.  never  received  it.  Held,  that  A.  could  not  recover  back  the  ten 
guineas  which  he  had  paid  to  C,  because  he  could  not  establish  his  claim,  with- 
out poing  into  proof  of  the  illegal  transaction,  in  which  both  were  equally  en- 
gaged, (s) 

So,  where  money  deposited  upon  an  illegal  wager  has  been  paid  over  *to  the 
winner  by  the  consent  of  the  loser,  the  latter  cannot  afterwards  maintain  an  ac- 
tion against  the  former,  to  recover  back  his  deposit.  Thus,  in  the  case  of  How- 
son  v.  Hancock,(t)  which  was  also  an  action  of  indebitatus  assumpsit  for  mo- 
ney had  and  received.  It  appeared,  that  the  plaintiff  and  the  defendant  had 
laid  two  wagers,  the  one  of  10/.    and  the  other  of  3/.  16s.  on  the   event  of  a 


(p)  3  Taunt.  277.  (5)  Simpson  v.  Bloss,  2  Mars.  542. 

(q)  Ante,  372.  (0  8  Term  Rep.  575.  Et  ante,  272. 

♦374 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.         374 

horse-race,*prohibited  by  the  statute  10  Geo.  2.  c.  19.  s.  2.,  and  deposited  the 
money  in  the  hands  of  certain  stake-holders.  The  event  having  terminated  in 
favour  of  the  defendant,  both  sums  were  paid  over  to  him,  the  first  by  the  ex- 
press direction  of  the  plaintiff,  the  latter  (as  the  jury  found)  with  his  concur- 
rence ;  and  the  present  action  was  brought  to  recover  back  those  sums  from 
the  defendant.  But  the  Court  determined,  that  the  plaintiff  was  not  entitled  to 
recover,  and  Lord  Ken  yon  Ch.  J.  said,  "  There  is  no  case  to  be  found  where, 
when  money  has  been  actually  paid  by  one  of  two  parties  to  the  other  upon  an 
illegal  contract,  both  being  particeps  criminis,  an  action  has  been  maintained 
to  recover  it  back  again.  Here  the  money  was  not  paid  on  an  immoral, 
though  on  an  illegal  consideration;  and  though  the  law  would  not  have  enforc- 
ed the  payment  of  it,  yet,  having  been  paid,  it  is  not  against  conscience  for  the 
defendant  to  retain  it." 

5.  Of  Money  paid  upon  Illegal  Insurances,  &c.  in  the  Lottery.] 
Money  paid  as  a  premium  for  illegal  insurances  in  the  lottery  is  recoverable 
back  by  action  of  indebitatus  assumpsit  for  money  had  and  received.  This 
was  settled  in  the  case  of  Jaques  v.  Golighlly,(u)  which  was  an  action  of  in- 
debitatus assumpsit  for  money  had  and  received.  At  the  trial  it  was  proved, 
that,  on  the  1st  of  January,  1775,  the  plaintiff  insured  many  lottery  tickets,  in 
various  manners,  at  the  defendant's  office.  The  whole  amount  of  the  premiums 
by  him  paid  was  64/.  17s.  6d.  Upon  some  of  the  chances  the  plaintiff  was  a 
loser,  in  more  a  winner.  The  balance  due  to  him  was  90/.  This  the  defen- 
dant refused  to  pay,  alleging,  that  the  insuring  was  illegal,  but  insisted,  on 
retaining  the  premiums  ;  and  upon  this  evidence  a  verdict  was  found  for  the 
plaintiff,  damages  64/.  17 s.  6d.  The  counsel  for  the  defendant  moved  for  a 
new  trial,  upon  the  ground  that  the  contract  was  void  and  illegal  by  the  stat. 
14  Geo.  3.  c.  76.  and  the  plaintiff  entitled  to  no  relief,  because  he  was  particeps 
criminis,  and  knowingly  transgressing  a  public  law.  But  the  Court  refused 
the  rule,  and  determined  that  the  plaintiff  was  entitled  to  recover;  and  Black- 
stone  J.  said,  "  These  lottery  acts  differ  fiom  the  stock-jobbing  act  of  the  7 
Geo.  2.  c.  8.  because  there  both  parties  are  made  criminal,  and  subject  to 
penalties  ;  but  the  losing  party  is  indemnified  from  those  penalties,  in  case  he 
sues  and  recovers  back  the  money  lost  from  the  winner.  It  was  therefore  nec- 
essary, in  the  preceding  clause,  to  give  the  loser  a  power  to  maintain  such  an 
action.  But  here,  *(on  the  part  of  the  insured,)  the  contract  on  which  he  has 
paid  his  money  is  not  criminal,  but  merely  void  ;  and  therefore,  having  advanc- 
ed his  premium  without  any  consideration,  he  is  entitled  to  recover  it  back." 

So,  if  a  servant  illegally  insures  in  the  lottery,  and  pays  the  premiums  of  in- 
surance with  his  master's  money,  the  money  so  paid  may  be  recovered  back 
by  the  master  in  an  action  for  money  had  and  received  against  the  lottery- 
office  keeper.  Thus,  in  the  case  of  Clark  v.  Slice  and  Johnson,{x)  which  was 
also  an  action  for  money  had  and  received.     At  the  trial,  a  verdict  was  found 


(u)  2  Bl.  Rep.  1073.    See   also  Jacques  v.       (r)  Cowp.  197.     Loft.,  756.  S.  C. 
Withy,  1  H.  Bl.  65.  S.  P. 

46  *375 


375  On  Promises  To  Pay  Over  Money        [Part  II. 

for  the  plaintiff,  damages  459/.  4?.  4d.  subject  to  the  opinion  of  the  Court,  upon 
the  following  case  :  David  Wood  being  a  clerk  to  the  plaintiff,  a  brewer,  and 
receiving  money  from  the  plaintiff's  customers,  and  also  negotiable  notes  for 
the  plaintiff's  use,  in  the  ordinary  course  of  business,  paid  several  sums  with 
the  said  money  and  notes,  at  different  times,  to  the  amount  of  459/.  4s.  4d.  to 
the  defendants,  upon  the  chances  of  the  coming  up  of  tickets  in  the  state-lot- 
tery of  1772,  contrary  to  the  lottery  act  of  that  year.  The  Court  deter- mined 
that  the  plaintiff  was  entitled  to  recover  in  this  action. 

But,  in  the  case  of  King  v.  Scrape,(y)  which  was  an  action  for  money  had 
and  received  brought  to  recover  several  sums  of  money,  stated  to  have  been 
paid  by  the  plaintiff  to  the  defendant,  for  illegal  insurances  in  the  lottery,  in  the 
years  1793  and  1794.     A  witness  of  the  name  of  Felton,  called  by  the  plain- 
tiff, proved  that  he,  in  the  beginning  of  the  lottery,  contracted  with  the  defen- 
dant to  insure  for  each  day  of  the  drawing  at  a  settled  price  of  insurance  for 
each  day  ;  that  he  made  insurances  with  different  persons  on  his  account, 
which  he  re-assured  with  the  defendant,  reserving  to  himself  a  certain  profit  per 
cent.     He  then  proved,  that  King,  the  plaintiff,  as  well  as  other  persons,  insur- 
ed the  several  numbers  which  he  mentioned,  with  him  (the  witness),  which  he 
daily  re-assured  with  Scrape,  the  defendant ;  but  added,  that  he  never  informed 
Scrape  of  the  persons  whose  numbers  he  had  insured.     This  tran  saction  was 
in  1794.     Another  witness  was  called,  who  proved    that  in  1793,  King  had  in- 
sured in  that  year  with  Scrape,  but  that  on  the  balance  of  the  account  the  plain- 
tiff was  in  defendant's  debt,  the  sums  paid  by  the    defendant  having    exceeded 
the  money  received  as  premiums.     Eyre  Ch.  J.  said,  "  The  case  of  Clark  v. 
Shce  does  not]  come  up  to  the  present.     There  the  plaintiff's  money  was  paid 
over  to  the  defendant  by  the  plaintiff's  servant;  the  property  passed  directly 
from  the  plaintiff  to  the  defendant,  and  he  could  follow  it  into  the   defendant's 
possession.     But  in  the  present  case,  the  property  is   changed  by  the  interven- 
ing contract  with  Felton,  and  became  vested  in   him :  there  is   therefore  no 
contract  with  the  defendant  in  this  action.     Though  there  may  be  s  ome  doubt 
as  to  the  situation  of  the  witness,  whether  he  was  *not  the  agent  of  the  defen- 
dant, and  the  money  paid  to  him  for  the  defendant's  use,  yet  as  there  is  no  di- 
rect evidence  offered  to  support  it,  it  must  be  taken  from  the  evidence  of  Felton, 
to  be  otherwise,  and  the  transaction  to  have  been  on  his  own  account.     And  as 
to  the  transaction  in  1793,  as  it  there  appears,  that  after  payments  and  allowan- 
ces on  both  sides,  there  was  a  balance  in  favour  of  the  plaintiff,  he  therefore 
can  have  no  right  to  maintain  an  action  for  money  had  and  received,  as  he  had 
in  fact    received  more    money  than  he  paid."     The  plaintiff  was    therefore 
nonsuited. 

So,  money  paid  by  the  insurer,  or  lottery-office  keeper,  to  the  insured  cannot 
be  recovered  back.     Thus,  in  the  case  of  Browning  v.   Morris,(a)  which  was 


(y)  1  Esp.  Rep.  432.  Deey,  1  Esp.  Rep.  152.  S.  C. 

(a)  Cowp.  790.     See  also  Drummond  v. 
♦376 


Chap.  4.]  Had  and  Received  to  the  Use.  of  Another.    376 

an  action  for  money  had  and  received.  The  facts  were  as  follow  :  The  plain- 
tiff and  defendant  were  both  lottery-office  keepers  ;  and  during  the  drawing  of 
the  lottery,  entered  into  an  agreement  mutually  to  insure  the  number  of  a  tick- 
et with  each  other,  upon  condition,  that  he  whose  number  should  be  drawn  on 
the  day  next  following  the  agreement,  should  receive  from  the  other  an  un- 
drawn ticket,  or  the  value  of  it  at  the  market  price.  The  defendant's  number 
being  drawn,  he  chose  the  price  of  an  undrawn  ticket,  which  came  to  14/.  3*., 
and  received  that  sum  from  the  plaintiff.  The  next  day  each  insured  another 
number,  upon  the  same  terms  :  and  so  the  contract  continued  from  day  to  day. 
It  afterwards  happened,  that  the  plaintiff's  number  was  drawn,  when  the  de- 
fendant, instead  of  complying  with  the  terms  of  the  agreement,  as  the  plaintiff 
had  done,  refused  to  give  the  plaintiff,  either  an  undrawn  ticket,  or  the  value  of 
one.  Neither  of  them  had  any  tickets  in  their  possession,  the  consequence  of 
which  was,  that  the  contract  was  illegal,  and  against  the  statute.  But  the  ques  - 
tion  was  whether  the  plaintiff  was  entitled,  in  disaffirmance  of  the  contract,  to 
recover  back  the  sum  which  he  had  paid  upon  this  ill  egal  transaction  1 

The  Court  were  of  opinion  that  the  plaintiff  was  not  entitled  to  recover ;  for 
it  was  observed,  the  plaintiff  did  not  bring  his  action  for  money  paid  by  him  to 
the  defendant  for  insuring  ;  but  for  money  paid  by  him  to  the  defendant  in  con- 
sequence of  his  having  insured  the  defendant's  tickets.  So  that  the  plaintiff 
was  not  only  in  pari  delicto,  but  also  stood  in  the  light,  and  under  the  descrip- 
tion of  that  species  of  insurer,  from  whom  the  statute  meant  to  protect  the 
unwary. 

*21.  IN  WHAT  CASES  THIS  FORM  OF  ACTION  WILL  LIE  FOR  FEES  OR 
ACCUSTOMED  DUES  RECEIVED  ;  AND  WHICH  ARE  EITHER  CLAIMED 
BY  ADVERSE  PARTIES,  OR  WHERE  THE  RIGHT  OF  TAKING  THEM 
IS  DISPUTED:     AND  AGAINST  WHOM  THE  ACTION  LIES. 

Where  a  person  has  usurped  an  office  belonging  to  another,  and  taken  the  known 
and  accustomed  fees  of  office  ;  or  where  two  persons  claim  title  to  an  office, 
and  one  receive  the  profits,  either  by  himself  or  his  collector,  the  other  may  bring 
indebitatus  assumpsit  for  money  had  and  received,  whereon  the  title  must  be 
proved .  (b)  But  such  action  must  be  brought  against  the  principal,  and  not 
against  the  colleetor.(c)  So,  where  a  person  is  entitled  to  an  office  with  fees 
annexed,  and  a  stranger  intrudes  into  the  office,  and  receives  the  fees,  this  form 
of  action  lies  to  recover  them  ;  but  they  must  be  certain,  known,  and  accustom- 
ed fees  annexed  to  the  office,  and  such  as  the  legal  officer  could  himself  recover 
in  a  court  of  law  from  the  persons  of  whom  they  are  claimed  and  received. 
Thus,  in  the  case  of  Boyter  v.  Dodsworth,(d)  which  was  an  action  for  money 
had  and  received  brought  to  recover  back  fees,  received  by  the  defendant  to  the 
use  of  the  plaintiff,  as  belfry  sexton,  and  church  sexton  of  the  cathedral  of  Salts- 


(6)  2  Mod.   260.  2S3.      3  Lev.  262.     2  T.         (d)  6  Term  Rep.  68 1.     See  also  Green  v. 
Jon.  127.     1  Danv.  27.  HetoUt,  Peake  N.  P.  IS2. 

(c)  4  Bur.  1934.     Bui.  N.  P.  133. 

•37? 


377  On  Promises  To  Pay  Over  Money     [Part  II. 

bury.     The  plaintiff  claimed  under  two  patents  in  1777,  from  the  treasurer  of 
the  church,   confirmed  by  the  dean  and  chapter,  granting  to  him  for  a  valuable 
consideration  the  above  offices  for  life.     The  one   granted  to  him  the  office  of 
belfry  sexton,  "  together  with  the  right  and  full  power  of  keeping  keys  to  and 
for  the  doors  of  the  said  church,  with  free  liberty  of  ingress,  egress,  and  regress 
into  and  from  the  said  church  for  cleansing,  showing,  or  otherwise  officiating  in 
the  same."     The  other  granted  to  him  the  office  of  church   sexton,  "  together 
with  all  fees,  wages,  and  profits  belonging,  &c.  in  as  large  and  ample  a  man- 
ner as  S.    C,  (his  predecessor,)  &c.  had,   &c."     The  plaintiff  having  proved 
these  patents,  and  stated  that  the  defendant  had  lately  intruded  into  these  offices  , 
and  had  received  several  sums  of  money  from  strangers  to  whom  the    church 
had  been  shown,  Bailer  J.,  before  whom  the  cause  was  tried,  called  on  the  plain, 
tiff's  counsel  to  prove  that  there  were  certain  known  and  accustomed  fees  annex, 
ed  to  the  offices,  and  that  the  defendant  had  received  fees,  such  as  the   legal 
officer  could  himself  recover  in  a  court  of  law  from  the  persons  to  whom  the 
church  was   shown.     It   was   admitted   that  there    were  no   such  regular  fees, 
but  that  it  was   usual  for  different  persons  to  give  what  sums  they  pleased  : 
the   learned   judge   nonsuited    the   plaintiff.     A    motion,   however,   was   after- 
wards made   for  a  rule  to  show  cause  why  the  *nonsuit  should  not  be  set  aside, 
and  a  new  trial  granted :  But  the  Court   refused  the  rule,  and  determined,  that 
money  given  to  A.  and  claimed  by  B.,  as  perquisites  of  office,  cannot  be  recov- 
ered by  B.  in  an  action  for  money  had  and  received,  unless  such  perquisites  be 
known  and  accustomed  fees.     And   Lord   Ken  yon  Ch.  J.  said :   "  There  is  no 
ground  on  which  this  action  can  be  supported.     If  there  had  been  certain  fees 
annexed  to  the  discharge  of  certain  duties  belonging  to  this  office,  and  the  de- 
fendant had  received  them,  an  assize  would  have  lain  ;  and  the  action  for  money 
had  and  received  to  recover  fees  has  always  been  considered  as  being  substitut- 
ed in  the  place  of  an   assize.     But  there  is   no  pretence  to  say,   that  an  assize 
will  lie  for  a  gratuity  for  money  given,  which  the   party  might  have  refused  to 
give  if  he  pleased.     And  with  regard  to  natural  justice,  the  person  who  performs 
the  duty  is,  in  justice,   entitled  to  the  money  given  for  such  duty  :   here  the 
defendant,  in  fact,  performed  the  service,  and  on  principles  of  natural  justice  he 
is  entitled  to  the  reward.     If  there  had   been  regular   fees   due  for  the  duties 
performed,  and  the   defendant  had  intruded  into  the  offices,  the   plaintiff  might 
either  have  supported  an  action  for  money  had  and  received,  or   for  disturbing 
him  in  his  offices." 

So,  the  nominee  of  a  perpetual  curacy,  not  having  subscribed  the  articles, 
or  been  licensed  by  the  bishop,  cannot  maintain  an  action  for  money  had  and 
received  against  one  who  is  in  possession  of  the  profits,  and  who  likewise 
claims  to  be  curate,  and  has  been  licensed  by  the  bishop.  Thus/in  the  case  of 
Powel  v.  Milbank,(e)  which  was  an  action  for  money  had  and  received,  brought 
by   the  plaintiff,    as   nominee  of  the   perpetual   curacy   of  Chester   le   Street, 


(r)  Mich.  12  Geo.  3.  B.  R.     1  Terra  Rep  399.  n.  d. 
*378 


Chap.  4.]  Had  and  Received  to  the  Use  of  Another.      S78 

against  the  defendant,  who  was  in  possession  of  the  profits,  and  claimed  likewise 
to  be  curate.  At  the  trial,  the  plaintiff  set  up  a  title  under  Mr.  and  Mrs. 
Jolliffe,  who  had  nominated  *him  to  this  living  as  a  donative,  and  likewise 
under  a  nomination  from  the  Great  Seal,  which  was  directed  to  the  bishop  in  the 
usual  form  of  presentations.  As  to  the  title  under  the  crown,  it  was  proved, 
that  this  formerly  belonged  to  the  deanery  of  the  collegiate  church  of  Chester 
le  Street,  and  came  to  the  crown  on  the  dissolution  of  monasteries,  and  continued 
in  the  hands  of  the  crown  till  16  Jac.  1.,  when  the  deanery  was  granted  away 
by  the  crown,  excepting  all  advowsons,  donations,  dispositions,  and  rights  of  pat- 
ronage to  all  churches,  vicarages,  chapels,  &c,  and  reserving  the  annual  sum  of 
10/.  to  be  paid  to  the  curate  for  the  time  being.  No  nomination  or  presentation 
could  be  proved  by  the  crown  since  the  16  Jac.  1.,  but  two  or  three,  and  no  more, 
were  shown  by  persons  claiming  under  the  grant.  The  plaintiff  then  entered 
on  his  title  under  Mr.  and  Mrs.  Jolliffe,  and  proved  the  nomination  under  their 
seals  :  that  he  had  taken  the  oaths  of  allegiance  *and  supremacy  before  them, 
and  that  he  produced  his  nomination  to  the  bishop,  and  tendered  himself  to 
subscribe  the  articles,  and  make  the  declaration  of  conformity  before  him  :  but 
the  bishop  refused  to  suffer  him  to  do  it,  because  he  had  before  licensed  the 
defendant ;  and  the  plaintiff  never  was  licensed  by  the  bishop. 

The  Court  were  of  opinion,  that  the  plaintiff  could  not  recover  ;  and  Lord 
Mansfield  Ch.  J.  said :  "  It  seems  impossible  to  maintain  this  action  against  the 
defendant,  who  is  completely  in  possession.  A  license  is  never  necessary  if 
this  action  can  be  maintained,  and  you  may  as  well  bring  an  action  for  money 
had  and  received,  where  a  man  is  not  in  possession,  instead  of  an  ejectment. 
Here  this  must  be  taken  to  be  a  cure  of  souls,  for  it  is  stated  to  be  a  parish  ; 
and  in  that  case  it  is  expressly  required  that  there  should  be  a  subscription." 

Where  fees  of  office  are  demanded  and  received,  but  the  party  paying  them 
disputes  the  receiver's  right  to  them,  or  his  own  liability  to  be  charged,  an  ac- 
tion of  indebitatus  assumpsit  for  money  had  and  received  will  lie  to  try  the 
question  between  them.  Thus,  in  the  case  of  Andrews  v.  Cawthorne,(f) 
which  was  an  action  of  indebitatus  assumpsit  for  money  had  and  received,  to 
recover  back  the  sum  of  3s.  4d.  received  by  the  defendant,  by  order  of  Dr. 
Vernon,  rector  of  St.  George 's,  Bioomsbury,  as  a  burial  fee  claimed  by  the 
Doctor  for  the  burial  of  A.  M.  in  the  new  church-yard  assigned  and  belong- 
ing to  the  parish  of  St.  George'' s,  Bioomsbury,  by  virtue  of  the  stats.  9  Anne, 
c.  22.  10  Anne,  c.  11.  1  Geo.  1.  stat.  1.  c.  23.  4  Geo.  1.  c.  14,  and  3  Geo. 
2.  c.  19.  But  the  burial  fees  of  this  parish  had  not  been  fixed  by  the  com- 
missioners mentioned  in  the  stat.  3  Geo.  2.  c.  19.  The  Court  determined, 
that  no  burial  fee  is  due  at  common  law  :  but  it  may  be  due  by  custom  in  any 
particular  parish  :  and,  with  respect  to  St  George's,  Bioomsbury,  the  burial  fees 
must  first  be  fixed  by  certain  commissioners,  as  directed  by  the  stat.  3  Geo.  2. 
c.  19.  before  they  are  detnandablc. 


(/)Willes,  536. 

*379 


379  On  Promises   To  Pay  Over  Money       [Part  II. 

So,  this  form  of  action  lies  to  recover  back  monies  demanded  and  received  by 
one,  as  Mayor,  which  were  not  due  to  him,  but  to  the  chamberlain,  who  afterwards 
claimed  the  amount,  and  compelled  the  plaintiff  to  pay  it  a  second  time.(g-) 

This  form  of  action  also  lies  against  a  post-master,  for  receiving  more 
money  than  he  is  entitled  to  for  the  delivery  of  letters,  or  for  receiving  money 
of  a  person  claiming  the  privilege  of  franking. [h) 

So,  if  A.  receives  rent  of  the  tenants  of  B.  under  pretence  of  title,  it  is  said, 
an  action  of  indebitatus  assumpsit  for  money  had  and  received  lies  against 
him ;  for  in  such  case  an  account  will  lie  :  and  wherever  account  lies,  an  i?x- 
dcbitatus  assumpsit  will  lie.  (i)  But  Mr.  Gwillim,  in  *his  edition  of  Bacon's 
Abridgment,  (&)  puts  this  qucere,  whether,  when  the  defendant  claims  title,  an 
action  of  assumpsit  for  the  rents  received  will  lie  against  him  ?  for  he  adds, 
that  Wilson  J.,  in  such  an  action,  nonsuited  the  plaintiff;  and  was  of  opinion, 
that  the  mode  of  proceeding  was  either  by  ejectment,  or  where  that  could  not 
be  brought,  by  an  action  against  the  tenant  for  the  rent  wrongfully  paid  by  him 
to  the  person  not  entitled  to  it. 

So,  in  the  case  of  Liltlewood  v.  Williams, {I)  wheie  it  appeared  that  a  prac- 
tice had  prevailed  during  the  incumbency  of  several  vicars,  that  upon  the  bu- 
rial of  any  stranger  in  the  parish  of  H.  certain  fees  should  be  paid,  of  which 
the  vicar  took  one  moiety,  and  the  churchwardens  the  other,  for  the  use  of  the 
poor.  The  fees  were  paid  to  the  sexton,  who  paid  over  the  moieties  to  the 
respective  parties.  A  new  vicar  refused  to  accede  to  this  arrangement ;  he 
buried  several  strangers,  and  procured  the  sexton,  to  whom  the  fees  were  paid, 
to  pay  over  the  entire  fees  to  himself.  Held,  that  the  churchwardens  might 
recover  one  moiety  as  had  and  received  to  their  use. 

But  an  action  for  money  had  and  received  cannot  be  maintained  against  a 
churchwarden  to  recover  back  dues,  which,  previous  to  the  commencement  of 
the  action,  had  been  paid  over  to  the  treasurer  of  the  trustees  of  a  chapel.  (?n) 

22.  OF  PRIZE  MONEY  RECEIVED;  AND  WHEN  THE  RIGHT  TO  DIS- 
TRIBUTIVE SHARES  MAY  BE  TRIED  IN  AN  ACTION  FOR  MONEY 
HAD  AND  RECEIVED. 

It  is  said(tt)  to  be  established  upon  the  authority  of  a  regular  series  of  deci- 
sions, that  the  question  of  "  prize  or  no  prize"  cannot  be  tried  at  common  law, 
but  must  be  tried  before  the  judge  of  the  High  Court  of  Admiralty ;  and  that 
the  jurisdiction  depends  not  upon  the  locality,  or  upon  the  parties,  but  up- 
on the  nature  of  the  question,  which  is  such,  as  is  not  be  tried  by  any  rules 
of  the  common  law  ;  but  by  a  more  general  law,  the  law   of  nations,   admin - 

(«■)   Bonne!  v.  Foulk,  2  Sid.  4.  (I)  6  Taunt  277.    1  Mar.  589.  S.  C. 

(k)   Smith  v.  Dennis,  Loft,   753.  Lord  Pc-  (hi)  Horse/all  v.  Hundley,   8  Taunt.    136. 

Ire  v.  Lord  Auckland,   2  Bos.  &  Pul.  139.  2  Mo.  5.  S.  C. 

(i)  Per   curiam,  2    Mod.    263.    12  Mod.  («)  Vide  2  Bro.  Cas.  in  Pari.  429.  8yo. 

321.   1  Dan.  Abr.  27.  cd. 

(fc)  1  Vol.  260. 

*380 


Chap.  4.]    Had  and  Received  to  the  Use  of  Another-    380 

istered  by  forms  best  adapted  to  the  subject  of  its  jurisdiction,  and  the  interest 
of  all  the  parties.  But  after  the  court  of  prize  have  pronounced  sentence  in 
favour  of  the  captors,  and  the  property  captured  is  sold,  and  converted  in  mo- 
ney for  the  purpose  of  being  duly  distributed  amongst  the  captors,  an  action 
at  common  law  for  money  had  and  received  will  lie  at  the  suit  of  any  one 
of  the  captors  for  his  share,  either  against  the  agent (0)  who  withholds  it,  or 
against  the  person  to  whom  such  share  may  have  been  *  wrongfully  paid.(p)  So, 
the  captor  of  a  prize  may  legally  assign  his  share  therein  before  condemnation  ; 
and  the  assignee  may  maintain  indebitatus  assumpsit  for  money  had  and  re- 
ceived to  his  use  against  the  ship's  agent  for  not  paying  it  over  to  him  after 
condemnation,  &c.  (q)  But  every  instrument  by  which  a  seaman  or  marine  con- 
veys his  prize  money  or  wages  in  the  hands  of  the  public  officers,  must  be  drawn 
in  the  form  prescribed  by  26  Geo.  3.  c.  63.,  and  the  statutes  to  which  it  re- 
fers, (r)  otherwise  it  will  be  void. 

For  more  concerning  money  had  and  received,  vide  post,  tit.  Principal  and 
Agent.     Partners — Infants. 

.  ■    i  ■  ■ —     ■       ....      -      .i    .-■—    ■■<».,.  ■    -- 

(o)  4  East  Rep.  238.3  Bos.  &  Pul.   257.      Taunt.  Rep.  1. 
6  East  Rep.  220.  (q)  Morroughv.  Comyns,  1  Wils,  211. 

(p)  Doug.  324.  1  H.  BI.  261.  8  Term  Rep.        (r)   Turtle  v.  Hartwell,  6  Term  Rep.  426. 
§24.  2  East  Rep.  507.  8   East   Rep.  502.   1     Macdonald  v.  Palsey,  1  Bos.  &  Pul.  161. 

*381 


3S2  On  Promises  to  Repay  Money  Lent.        [Part  II. 


♦CHAPTER  V. 


ON  PROMISES  TO  REPAY  MONEY  LENT. 

Money  lent  by  one  person  to  another,  may  be  recovered  by  action  of  indebi- 
tatus assumpsit,  either  upon  an  express  or  implied  pi  omise  to  repay  the  money. 
So,  where  money  is  advanced  to  B.  at  the  request  of  A.,  who  undertakes  to  be 
accountable  for  it,  the  lender  may  maintain  an  action  of  indebitatus  assumpsit 
against  A.  for  so  much  money  lent  and  advanced  to  him.  Thus,  in  the  case  of 
Harris  v.  Huntback,(a)  which  was  an  action  of  indebitatus  assumpsit  upon  a 
declaration  for  money  lent  and  advanced  by  the  plaintiff  to  the  defendant,  and 
at  his  request.  And  upon  the  trial,  a  note  of  the  defendant's  was  produced  in 
evidence  by  the  plaintiff,  in  the  following  words  :  "  3d  December,  1751,  Receiv- 
ed of  Mr.  Harris  the  sum  of  19Z.  on  the  behalf  of  my  grandson,  which  I  promise 
to  be  accountable  for  on  demand.  Witness  my  hand  S.  Hwitback."  It  appear- 
ed that  the  grandson  was  an  infant  at  the  time  of  advancing  the  monej\  The 
Court  of  King's  Bench  determined  that  this  evidence  was  sufficient  to  support 
the  declaration.  And  Denison  J.  said,  "  This  note  is  evidence  of  money  lent : 
and  as  between  the  plaintiff  and  defendant,  this  is  certainly  an  original  under- 
taking ;  and  the  money  was  paid  at  the  defendant's  request.  And  there  is  no 
privity  between  the  plaintiff  and  the  infant." 

So,  if  money  be  lent  to  A.  and  advanced  to  B.  at  the  request  of  A.,  an  action 
of  indebitatus  assumpsit  on  an  implied  promise  will  lie  against  A.  for  so  much 
money  lent  and  advanced  tohim.(6)  And  the  declaration,  in  such  case,  must  be 
for  money  lent  and  advanced  to  A. ;  for  money  lent  to  a  third  person  at  another's 
request  is  bad.(c) 

It  has,  however,  been  determined,  that  a  declaration  for  money  lent  to  a  feme 
covert  at  the  request  of  her  husband  is  good.  Thus,  in  the  case  of  Stephenson 
v.  Hardy(d),  which  was  an  action  of  indebitatus  *assumpsit,  and  the  declara- 
tion stated  "  That  the  defendant  on  such  a  day  and  year,  was  indebted  to  the 
plaintiff  in  30/.,  for  money  before  that  time  lent  by  the  plaintiff  to  Ann  the 
wife  of  the  defendant,  in  his  absence,  and  at  his  special  instance  and  request, 
and   being  so  indebted  he  promised  payment."     It  was  proved  at  the  trial,  that 

(a)   1  Burr.  373.  Lister,  2  Wils.  141.  S.  P. 
(6)  1  Ventr.  311.  2  Ventr.  36.   6  Mod.  77.         (d)  3  Wila.  38S.  See  also  Stone  v.  Macnmr 

(c)  Carth.  446.  1  Salk.  23.  S.  C.  Marriot  v.  in  error,  7  Taunt.  432.  S.  P. 
*382  *383 


Chap.  5.]        On  Promises  to  Repay  Money  Lent-  383 

the  defendant  being  about  to  set  out  upon  a  voyage  to  Ireland,  desired  the 
plaintiff  to  lend  his  (defendant's)  wife  money,  if  she  should  have  occasion  for  it 
in  his  absence  :  the  plaintiff  accordingly  did  lend  her  the  sum  for  which  this  ac- 
tion was  brought.  At  the  trial,  the  plaintiff  obtained  a  verdict.  But  the  coun- 
sel for  the  defendant  afterwards  moved  the  court  in  arrest  of  judgment,  upon 
the  ground  that  a  husband  cannot  be  indebted  for  money  lent  to  his  wife,  be- 
cause she  cannot  contract  to  borrow  money  ;  but  they  said,  that  if  it  had  been 
alleged  that  the  defendant  was  indebted  in  so  much  money  advanced  by  the 
plaintiff  to  Ann,  the  wife  of  the  defendant,  at  his  instance  and  request,  it  would 
have  been  right  enough  ;  but  they  argued  that  the  word  lent  was  a  technical 
term,  the  legal  idea  or  meaning  of  which  is  so  certainly  established  and  fixed, 
that  it  is  as  impossible  for  the  husband  to  be  indebted  for  money  lent  to  his 
wife,  as  it  is  for  A.  to  be  indebted  to  B.  for  money  lent  to  C,  a  third  person, 
and  cited  Mar  riot  v.  Lister,  2  Wilson,  141.  and  1  Salk.  23.  2  Vent.  36.  But 
Lord  Chief  Justice  De  Grey  said,  "  It  is  admitted,  that  if  the  word  advanced 
had  been  inserted  in  the  count  instead  of  the  word  lent,  it  would  have  been  good  : 
Now,  I  think,  (in  this  case),  the  word  lent  is  the  same  as  the  word  advanced  ; 
and  that  this  is  not  like  the  cases  cited,  which  are  good  law ;  I  think  that  a 
loan  to  the  wife,  at  the  request  of  the  husband,  is  the  same  in  law,  as  if  the  loan 
had  been  to  the  husband  himself."  And  of  this  opinion  were  all  the  other  judg- 
es.    The  motion   for  arresting  the  judgment   was  therefore  discharged. 

Where  money  is  lent  on  a  pledge,  the  lender  may  recover  it  by  action  of 
indebitatus  assumpsit,  unless  there  be  a  special  agreement  to  stand  to  the 
pledge  only.  This  was  determined  in  the  case  of  the  South-Sea  Company  v. 
Duncomb,(e)  upon  a  trial  at  bar,  in  an  action  for  money  lent,  it  appeared  that 
8000/.  was  advanced  to  the  defendant  by  the  plaintiffs  in  1720,  upon  a  pawn 
of  2000/.  stock.  And  the  defendant  not  repaying  it,  the  question  to  be  tried 
was,  whether  the  plaintiffs  could  proceed  against  the  person  of  the  defendant, 
or  must  stand  to  the  remedy  against  the  stock.  And  after  proof  of  many  par- 
ticulars, to  induce  a  belief  that  in  these  loans  no  regard  was  had  to  personal 
security  ;  the  court  left  it  to  the  jury  upon  this  point,  that  where  money  is 
generally  lent  upon  a  pledge,  it  will  not  deprive  the  lender  of  his  remedy 
against  the  person  ;  and  that  to  discharge  the  *person  of  the  borrower,  there 
must  be  a  special  agreement  to  stand  to  the  pledge  only."  The  jury  accord- 
ingly found  for  the  defendant. 

But  in  the  case  of  the  Governor  and  Company  of  the  Bank  of  England  v. 
Glover, {f)  which  was  an  action  of  indebitatus  assumpsit  brought  by  the  plain- 
tiffs against  the  defendant  for  454/.  18$.  3d.  lent  to  the  defendant  by  the  plain- 
tiffs :  and  at  the  trial,  before  Holt  Ch.  J.,  the  case  in  evidence  was  as  follows. 
"  The  defendant,  January  31st,  1700,  brought  a  note  of  Mr.  Shepherd,  a  gold- 
smith, payable  to  Robert  Stamper,  for  454/.  18s.  3d.,  to  the  Bank  of  England, 
and  prayed  Mr.  Maddocks,  the   cashier  of  the  bank,  to  give  him  a  specie  bank 


(«)  Stra.  919.     2  Barnard.  Rep.  B.  R.  48.  S.  C.  (/)  2  Ld.  Raym.  753. 

47  *384 


884  On  Promises  to  Repay  Money  Lent*      [Part  II. 

note  payable  to  the  said   Stamper  for  the  said   note  of  Shepherd ;  which  Mr. 
Maddocks  refused,  but  told  the  defendant,  that  if  he  would  promise  to  pay  the 
bank  the  454Z.  18s.  3d.  in  case  Shepherd  did  not  pay  the  said  note,  he  would 
give  him  a  specie   bank  note,   payable  to  himself,   for  the  said  sum  ;  to  which 
the  defendant  agreed.     Whereupon  Mr.  Maddocks   accepted  Shepherd's  note, 
and  gave  the  defendant,    Glover,  a  specie  bank  note  of  454Z.  18s.  3d.     This 
was  done  upon  the  Friday.     On  the  Monday  following   Shepherd's  note  was 
sent  to  him  to  be  paid,  but   Shepherd  refused  to  pay  it.     In  the  mean  time 
Glover  gave  this  bank  note  to  J.  S.  for  a  debt  owing  by  him  to  /.  S.,  and  J. 
S.  received  the  454Z.  18s.  3d.  of  the  bank."     And  after  debate  by  the  counsel 
on  both  sides,  Holt  Ch.  J.  was  of  opinion,  that  this   evidence  did  not  maintain 
the  action.     For  (by  him)  this  was  not  money  lent,  nor  laid  out  for  the  use  of 
the   defendant ;  but  it  was  a  buying  of  the  note  of  Shepherd,  with  a  warranty 
of  it  from  the  defendant ;  and  therefore   the   plaintiffs   might  well   maintain  a 
special  action,  but  not  a  general   indebitatus   assumpsit.     It  was  urged  by  the 
plaintiffs'  counsel,   that  this  note  was  only  a  depositum  or  pledge.     But  to  that 
the  Chief  Justice  answered,  that  that  could  not  be,  because  it  was  not  redeem- 
able by  the  defendant ;  and  redemption  is  incident  to  the  nature  of  a  pledge. 
The  plaintiffs  therefore  were  nonsuited. 

If  A.  lend  stock  in  the  public  funds  to  B.,  it  cannot  be  recovered  in  an  ac- 
tion of  indebitatus  assumpsit  as  money  lent ;  but  the  lender  must  declare  spe- 
cially upon  the  promise  of  the  borrower ;  because  stock  is  not  considered  as 
money,  (g) 

Money  lent  to  game  with,  or  to  pay  a  gaming  debt,  is  recoverable  by  action 
of  indebitatus  assumpsit;  for  the  statute  9  Anne  c.  14.  s.  1 .  only  avoids  securities 
given  upon  a  gaming  consideration,  but  does  not  extend  to  loans.  And  upon  this 
subject  the  following  decisions  have  been  made  :  in  the  case  of  Barjeau  v.  Walms- 
ley,(h)  which  was  an  action  of  indebitatus  assumpsit  for  money  lent:  it  appear- 
ed that  the  plaintiff  and  defendant  gamed  together,  at  tossing  up  for  five  guineas 
at  a  time  :  and  *the  plaintiff  having  won  all  the  defendant's  ready  money,  lent 
him  ten  guineas  at  a  time,  and  won  it,  till  the  defendant  had  borrowed  one  hun- 
dred and  twenty  guineas.  Upon  the  trial  it  was  contended  that,  by  the  stat.  9 
Ann.  c.  14.  the  plaintiff  could  not  maintain  this  action,  because  that  statute 
avoids  all  securities  entered  into  or  executed  for  money  knowingly  lent  and 
advanced  to  game  with  ;  and  the  borrowing  on  an  agreement  to  pay  is  a  secu- 
rity. But  Lee  Ch.  J.  held  this  was  not  a  case  within  the  act ;  for  there  is  not  the 
word  contract,  as  in  the  statute  of  usury  ;  and  he  said,  "  the  word  securities, 
as  it  stands  in  this  act,  must  mean  lasting  liens  upon  the  estate.  The  Parlia- 
ment might  think  there  would  be  no  great  harm  in  a  parol  contract,  where  the 
credit  was  not  like  to  run  high  ;  and  therefore  confined  the  act  to  neither  secu- 
rities."    Wherefore  the  plaintiff  obtained  a  verdict  for  126/. 

So,  in  the  case  of  Alcinbrook  v.  Hall,{i)  which  was  also  an  action  of  assump- 

(g-)  5  Burr.  2530.     2  Bl.  Rep.  634.     1  East         (A)  2  Stra.  1249.     See  also  1  BI.  Rep.  260. 
Rep.  1.  (i)  2Wils.  309. 

♦385 


Chap.  5.]     On  Promises  to  Repay  Money  Lent.  385 

sit  for  money  paid.  The  case  was  this  :  viz.  the  defendant  having  lost  a  sum 
of  money  above  10/.  upon  a  bet  at  a  horse-race,  requested  the  plaintiff  to  pay 
it  for  him,  which  he  did.  The  defendant  objected,  that  this  money  being  losr 
at  gaming,  and  recoverable  back  again  by  the  stat.  6  Ann.  c.  14.  no  action 
would  lie  :  but  the  Court  held  that  this  was  not  a  case  within  the  statute  ;  for 
there  is  not  the  word  contract,  as  in  the  statute  of  usury ;  and  judgment  was 
given  for  the  plaintiff. 

So,  in  the  case  of  Robinson,  Esq.  v.  Ami  Bland,  administratrix  of  John 
Bland,  Bart.,  (k)  which  was  also  an  action  of  assumpsit ;  and  the  declaration 
contained  three  counts.  The  first  count  was  upon  a  bill  of  exchange  drawn  at 
Paris,  by  the  intestate,  Sir  John  Bland,  on  the  31st  of  August,  1755,  on  him- 
self in  England,  for  the  sum  of  672/.  sterling,  payable  to  the  order  of  the 
plaintiff,  ten  days  after  sight,  value  received,  and  accepted  by  the  said  Sir  John 
Bland.  The  second  count  was  for  700/. ,  monies  lent  and  advanced  by  the 
said  plaintiff  to  the  said  Sir  John  Bland,  at  his  request.  The  third  count  was 
for  700/.  monies  had  and  received  by  the  said  Sir  John  Bland,  to  and  for  the 
use  of  the  plaintiff.  At  the  trial,  a  verdict  was  found  for  the  plaintiff,  damages 
672/. ;  subject  to  the  opinion  of  the  Court  of  King's  Bench,  on  the  following 
case,  which  stated,  "  That  the  bill  of  exchange  was  given  at  Paris  for  300/. 
there  lent  by  the  plaintiff  to  Sir  John  Bland,  at  the  time  and  place  of  play ; 
and  for  372/.  more  lost  at  the  same  time  and  place,  by  Sir  John  Bland,  to  the 
plaintiff,  at  play  ;  that  the  play  was  very  fair  ;  and  there  was  not  any  imputa- 
tion whatsoever  on  the  plaintiff's  behaviour ;  that  there  were  several  gentle- 
men and  persons  of  fashion  then  and  there  at  play  besides  the  plaintiff  and  Sir 
John  Bland  ;  that  in  France,  money  lost  at  play,  between  gentlemen,  may  be 
recovered  as  a  debt  of  honour  before  the  marshals  of  France,  who  can  enforce 
obedience  to  their  sentences  *by  imprisonment,  though  such  money  is  not  re- 
coverable in  the  ordinary  course  of  justice  ;  that  money  lent  to  play  with,  or  at 
the  time  and  place  of  play,  may  be  recovered  there,  as  a  debt  in  the  ordinary 
course  of  justice,  there  being  no  positive  law  against  it ;  that  Sir  John  Bland 
was,  and  the  plaintiff  is  a  gentleman."  The  question  for  the  opinion  of  the 
Court  was,  whether,  under  these  circumstances,  the  plaintiff  was  entitled  to  re- 
cover any  thing  and  what,  against  the  defendant  ?  The  Court  determined  that 
the  plaintiff  could  not  recover  upon  the  count  on  the  bill  of  exchange,  nor  for 
the  money  won  at  play  ;  but  that  he  was  entitled  to  recover  on  the  second  count 
for  the  amount  of  the  money  lent.  And  Lord  Mansfield  Ch.  J.  said,  "  In  the 
present  case  the  facts  stated  scarce  leave  room  for  any  question  ;  because  the 
law  of  France  and  of  England  is  the  same.  The  first  question  is,  whether  the 
plaintiff  is  entitled  to  recover  upon  this  bill  of  exchange  by  force  of  the  writing. 
The  second  question  is,  whether  he  is  entitled  to  recover  upon  the  original  con- 
sideration and  contract,  by  the  justice  and  equity  of  his  case,  exclusive  of  any 
assistance  from  the  bill  of  exchange,  and  taking  that  to  be  a  void  security. 
As  to  the  first  question,  the  defendant  has  objected  that  the  consideration  of  the 


(/.)  2  Bur.  1077. 

*386 


386  On  Promises  to  Repay  Money  Lent-         [Part  II. 

bill  of  exchange  is  wholly  money  won  und  lent  at  play  :  therefore,  by  force  of 
the  writing,  the  plaintiff  cannot  by  the  law  of  England  recover;  such  security 
being  utterly  void  ;  and  no  doubt  the  law  of  England  is  so. 

♦'  Then  as  to  the  other  counts   for  money  had  and  received  to  the  plaintiff's 
use,  and    for  money  lent    and   advanced    to   him.     Consider  it  distinctly,   as 
to  each  part  ;  the  money   won,  and  the  money  lent.     First,  as   to  the  money 
won.     By  the  rule  of  the  law  of  England  no   action  can  be  maintained  for  it. 
To  this  it  has  been  objected,   that  the  contract  was   made  in  France  :  there- 
fore, ex  comitate,  the  law  of  France  must  prevail,  and  be  the  rule  of  determina- 
tion.    I  admit  that  there  are   many   cases  where  the  law  of  the  place  of  the 
transaction  shall  be  the    rule  ;  and  the  law  of  England  is  as  liberal  in  this  re- 
spect  as  other  laws  are.     This    is  a  large   field,   and  not  necessary  now  to  be 
gone  into.     The  point  that  the  defendant  must  rest  upon,  in  the  present  case,  is 
this  ;  the  money  was  won  in   France  ;  therefore  it  ought  to  be  governed  by  the 
law    of  France ;  and  it  is    recoverable  there  before    the  marshals  of   France, 
who  can  enforce  obedience  to  their  sentence.     The  parliament  of  Paris  would 
pay  no  regard  to  their  judgment,  nor  carry  it  into  execution.     The  marshals 
of  France  proceed   personally  against  gentlemen,  as  to  points  of  honour,  with 
a  view  to  prevent   duelling.     They  could  not  have  taken  cognisance  of  the 
present  matter.     It  was  not  within  their  jurisdiction  :  it  was  no  breach  of  hon- 
our in  France ;  for  the  money  was   payable  in  England ;  and  Sir  John  Bland 
could  not  be  said  to  have  forfeited  his  honour  till  the  ten  days  were  out,    and 
till  the  money  had  been  demanded  in  England,  and  payment  refused  there.     Sir 
*John  Bland  was  actually    dead  in  a  very   short  time  after  he  gave   the  note. 
The  marshals    of  France  can  only  proceed  personally   against  the  gentleman 
who  loses  the  money,  but  have  no  power  over  his  estate  or  representatives  after 
his  death.     Therefore,   as  to  the  money  won,  the  contract  is  to  be  considered 
as  void  by  the  law  of  France,  as  well  as  by  the  law  of  England,  which  makes 
it  unnecessary  to  consider  how  far  the  law  of  France  ought  to  be  regarded.'' — 
Next,  as  to  the  money  lent :  The  sense  of  the  legislature   seems  to  me  to  be 
agreeable  to  the    cases  that  have  been  cited.     The  act  of  16  Car.  2.  c.  7.  s.  3. 
does  not  meddle  with  money   lent  at  play,  but  as  to  money  (exceeding   100/.) 
lost  and  not  paid    down  at  the  time  of  losing  it,  it  says,  "  that  the  loser  shall 
not  be  compellable    to  make  it  good,  but    the  contract   and   contracts  for  the 
same,  and  for  every  part  thereof,  and  all  securities  shall  be  utterly  void,"  &c. — 
The   words  '  contract  and  contracts  for  the  same,'  are  not  in  9  Ann,  and  I 
dare  say   were  designedly   left  out :  it  only  says,  "  that  all  notes,  bills,  bonds, 
judgments,   mortgages,   or  other  securities,   &c.  for  money  won  or  lent  at  play, 
shall  be  utterly  void,"  &c.     Here  the  money  was  fairly  lent  without    any   im- 
putation whatsoever.     Sir  John  Bland,  the   borrower  of   it  being  in   a  foreign 
country,    might   very  naturally  have  been    distressed    under  his  then  situation 
amongst    foreigners   for    want  of  having  ready  money,   or   knowing  how   to 
procure  it :  and  it  might  be  even  a  kind  and  generous,   and    commendable   act 
to  lend  it  to  him   at  that  time,  to  extricate  him   from  his  difficulties    as  he  was 
then   circumstanced.     The  jury  have  left  it  quite  open  to  the  court  to  deter- 
*387 


Chap.  5.]       On  Promises  to  Repay  Money  Lent.  S87 

mine  whether  any  thing,  and  what,  is  recoverable.  As  to  the  money  won,  we 
think  it  cannot  be  recovered :  as  to  the  money  lent,  the  plaintiff  is  entitled  to 
it,  both  by  the  law  of  England  and  by  the  law  of  France.'''' 

So,  in  the  case  of  Wettenhall  v.  Wood,  (I)  which  was  an  action  of  indebita- 
tus assumpsit  for  money  lent.  The  defence  set  up  was,  that  the  plaintiff  kept 
a  common  gambling  house  ;  that  the  defendant  being  there  at  play  with 
several  other  persons,  and  having  lost  all  his  money,  applied  to  the  plaintiff 
for  the  loan  of  some  money,  for  the  purpose  of  continuing  the  play,  when  the 
plaintiff  lent  him  the  sum  for  which  the  present  action  was  brought.  Lord 
Kenyon  Ch.  J.,  before  whom  the  cause  was  tried,  was  clearly  of  opinion, 
"  that  this  money  was  recoverable  ;  for  that  the  statute  9  Ann.  c.  14.  only 
avoided  securities  for  money  lent  to  play  with,  and  did  not  extend  to  cases  of 
mere  loans,  without  any  security  taken."  He  therefore  directed  a  verdict  for 
the  plaintiff. 

But  in  the  case  of  Cannan  v.  Bryce,(m)  it  was  determined,  that  money  *lent 
and  applied  by  the  borrower  for  the  express  purpose  of  settling  losses  on  illegal 
stock-jobbing  transactions  cannot  be  recovered  by  action  ;  the  act  of  paying  as 
well  as  receiving  being  expressly  prohibited  by  the  5th  section  of  the  stock- 
jobbing act  7  Geo.  2.  c.  8, 

So  no  action  lies  for  money  lent  for  the  ransom  of  a  ship,  contrary  to  the 
stat.  45  Geo.  3  c.  72.  (n) 


(J)  1  Esp.  Rep.   18.  Et  vide  Mcinbrook   v.         (>n)  3  Barn.  &  Aid.  179. 
Hall,  ante  335.  (?i)  Webb  v.  Brooke,  3  Taunt.  6. 

"388 


389         On  Promises  to  Repay  Money  Paid.  [Part  II. 


♦CHAPTER    VI. 


ON  EXPRESS  AND    IMPLIED  PROMISES  TO    REPAY  MONEY  PAID    AND 
EXPENDED  FOR  THE  USE   OF  ANOTHER. 

Where  a  person  has  paid  and  expended  his  own  money  for  the  use  of  ano- 
ther, either  at  his  request  or  by  compulsion,  the  law  raises  an  implied  promise  of 
repayment,  and  upon  which  an  action  of  indebitatus  assumpsit  will  lie.  (a)  The 
subject  of  the  present  chapter  will  be  considered  under  the  following  heads  : 
viz. 

1.  OF  MONEY  PAID  AND  EXPENDED  FOR  ANOTHER,  EITHER  UPON  AN 
'  EXPRESS  OR   IMPLIED  REQ.UEST :  AND  IN  WHAT  CASES  AN  ACTION 

OF  INDEBITATUS  ASSUMPSIT  WILL  LIE  TO  RECOVER   THE    MONEY 
SO  PAID. 

2.  OF  VOLUNTARY  PAYMENTS  MADE  WITHOUT  REQJJEST,  AND  THE 
PARTY  PAYING  NOT  BEING  UNDER  ANY  LEGAL  LIABILITY  TO 
PAY,  &c. 

3.  OF  PAYMENTS  MADE  ON  ACCOUNT  OF  ANOTHER  UNDER  A  DIS- 
TRESS FOR  RENT,  IN  ORDER  TO  REDEEM  THE  GOODS,  &c.  DISTRAIN- 
ED: AND  OF  PAYMENT  BY  A  TENANT  OF  THE  LANDLORD'S  TAXES, 
&c.  AND  WHEN  SUCH  PAYMENTS  MAY  BE  RECOVERED  BY  ACTION 
OF  INDEBITATUS  ASSUMPSIT. 

4.  OF  MONEY  PAID  FOR  ANOTHER  UPON  BILLS  OF  EXCHANGE,  PROM- 
ISSORY NOTES,  OR  OTHER  SECURITIES. 

5.  OF  MONEY  PAID  OR  SECURITIES  GIVEN  BY  A  SURETY  OR  BAIL  ON 
BEHALF  OF  THEIR  PRINCIPAL. 

6.  OF  CONTRIBUTION  BETWEEN  CO-SURETIES,  OR  OTHER  PERSONS 
JOINTLY  LIABLE  FOR  A  DEBT  OF  THEIR  PRINCIPAL :  AND  FOR  CON- 
TRIBUTION * AMONGST  CO-DEFENDANTS  FOR  DAMAGES  RECOVERED 
AGAINST  THEM  JOINTLY  EITHER  FOR  A  TORT  OR  TRESPASS  COM- 
MITTED BY  ALL  OF  THEM. 

7.  OF  CONTRIBUTION  BY  THE  OWNERS  OF  ADJOINING  PROPERTY  TO- 


(«)  3  Bl.  Com.  163.  Carfh.  446. 
*389    *390 


Chap.  6]     On  Promises  to  Repay  Money  Paid.  390 

WARDS  THE  BUILDING,  &c,  OF  PARTY  WALLS,  AND  OF  THE  STAT- 
UTE RELATING  THERETO. 

8.  OF  A  COMPULSORY   PAYMENT  OF    THE  DEBT  OF  ANOTHER,  MADE 
EITHER  BY  AN  ATTORNEY,  SHERIFF,  GAOLEK,  OR  OTHERS. 


I.  OF  MONEY  PAID  AND  EXPENDED  FOR  ANOTHER  EITHER  UPON  AN 
EXPRESS  OR  IMPLIED  REQ.UEST:  AND  IN  WHAT  CASES  AN  ACTION 
OF  INDEBITATUS  ASSUMPSIT  WILL  LIE  TO  RECOVER  THE  MONEY 
SO  PAID. 

If  money  be  paid  by  A.  at  the  request  of  B.  to  a  third  person,  or  if  it  be  ex- 
pended in  the  purchase  of  goods,  or  in  payment  for  work,  &c.  on  B.'s  account, 
an  action  of  indebitatus  assumpsit  for  money  paid  will  lie  at  the  suit  of  A.  against 

B.  for  the  amount  of  such  money  either  upon  an  express  or  implied  promise  of 
repayment.  Thus,  in  the  case  of  Alcinbrook  v.  Hall,(b)  which  was  an  action 
of  indebitatus  assumpsit  for  money  paid  by  the  plaintiff  for  the  defendant  at  his 
instance  and  request.  The  defendant  having  lost  a  sum  of  money,  above  ten 
pounds,  upon  a  bet  at  a  horse-race,  requested  the  plaintiff  to  pay  it  for  him, 
which  he  did  ;  the  defendant  objected,  that  this  money  being  lost  at  gaming, 
and  recoverable  back  again  by  the  statute  9  Ann.  c.  16.,  this  action  would  not 
lie  ;  but  the  court  held,  that  this  was  not  a  case  within  the  statute  ;  for  there  is 
not  the  word  contract  as  in  the  statute  of  usury  ;  and  gave  judgment  for  the 
plaintiff. 

So,  where  a  dinner  was  ordered  at  a  tavern  by  the  authority  of  two  persons 
who  had  laid  a  wager  of  a  rump  and  dozen,  whether  the  one  was  older  than 
the  other;  if  the  winner  pays  the  bill,  he  may  maintain  this  form  of  action 
against  the  loser  to  recover  the  amount  so  paid,  (c)  But  no  action  will  lie  for 
money  paid  for  settling  losses  on  illegal  stock-jobbing  transactions  :  such  pay- 
ments being  expressly  prohibited  by  the  stat.  7  Geo.  2.  c.  8.  s.  5.(d) 

Where  a  carrier,  by  mistake,  delivered  to  B.  goods  consigned  and   sold    to 

C,  and  B.  appropriated  the  goods  to  his  own  use  ;  and  the  carrier  after- 
wards on  demand  and  without  action,  paid  to  C.  their  *value ;  it  was 
held,  that  the  carrier  might  recover  the  amount  against  B.,  as  money  paid  to 
B.'s  use  ;  but  not  as  the  price  of  goods  sold  and  delivered  to  B.(e)  But  in  a 
subsequent  case  of  Lills  v.  Laing,(f)  which  was  an  action  for  money  paid  ; 
where  at  the  trial  before  Lord  Ellenborough  Ch.  J.,  it  appeared  in  evidence 
that  the  plaintiffs  being  wharfingers  had  a  quantity  of  canvass  left  at  their 
wharf  consigned  to  a  person  of  the  name  of  Fletcher  :  but,  by  mistake,  it  was 
carried  away  by  the  defendant,  who  had  cut  it  up  into  sails  before  he  discover- 
ed that  it  was  not  intended  for  him.     The  plaintiffs  were  then   called  upon  by 


(A)  2  Wils.  309  Et  vide  ante  385.  (e)  Broion  v.  Hodgson,  4  Taunt.   189. 

(c)  Hussey  v.  Cnckett,  3  Campb.   168.  (/)  4  Campb.  Hi 

(d)  Cannan  v.  Bryce,  ante,  387. 


*301 


391  On  Promises  to  Repay  Money  Paid-     [Part  II. 

Fletcher  for  the  value  of  the  canvass,  which  they  accordingly  paid  ;  and  for  the 
amount  of  which,  the  present  action  was  brought,  as  so  much  money  paid  to 
and  for  the  use  of  the  defendant :  on  behalf  of  the  plaintiffs  it  was  contended, 
that  they  might  waive  the  tort  committed  by  the  defendant  in  carrying  away 
the  canvass  from  their  wharf,  and  that  the  law  would  raise  a  promise  on  his 
part  to  repay  to  them  the  mone)r,  which  they  had  been  compelled  to  pay  by  his 
default.  But  his  lordship  held  that  the  plaintiffs  ought  to  have  declared  spe- 
cially, and  directed  a  nonsuit. 

So,  an  action  for  money  paid  cannot  be  maintained  unless  there  be  a  request 
to  pay  it  either  express  or  implied.  And  therefore  in  the  case  of  Lightfoot  v. 
Creed,  (g)  which  was  an  action  of  indebitatus  assumpsit  for  money  paid.  The 
facts  were  as  follow  :  the  defendant  on  the  23d  October,  had  sold  to  the  plain- 
tiff 3000?.  three  per  cent,  consols,  to  be  delivered  on  the  30th  of  the  same  month  ; 
that  on  that  day,  stock  having  in  the  mean  time  risen  in  price  ;  the  defendant 
refused  to  make  the  transfer;  in  consequence  of  which,  the  plaintiff  employ- 
ed a  broker  to  purchase  stock  to  the  same  amount,  which  was  accordingly 
transferred  to  the  plaintiff  on  the  31st  ;  that  the  loss  sustained  by  the  plain- 
tiff, by  the  defendant's  not  performing  his  contract,  was  457.  ;  and  that 
the  defendant  after  the  action  commenced  offered  to  pay  that  sum  with- 
out costs.  This  action  was  brought  to  recover  the  45Z.  But  the  Court 
determined  that  the  plaintiff  could  not  recover  that  sum  in  this  form  of  action  ; 
for  he  ought  to  have  declared  specially  upon  the  contract.  And  Gibbs  Ch.  J. 
said,  "  The  defendant  contracted  to  transfer  stock  on  a  certain  day  :  if  he  did 
not  transfer  the  stock  on  that  day,  the  plaintiff  was  entitled  to  call  on  him  to 
make  good,  in  the  shape  of  damages,  the  loss  sustained  by  the  defendant's  ab- 
staining from  the  performance  of  his  contract.  Instead  of  that,  the  plaintiff 
purchases  the  stock,  and  sues  the  defendant  for  the  difference,  who  never  au- 
thorised him  to  purchase  it,  either  expressly  or  impliedly.  From  the  circum- 
stance of  the  defendant's  having  offered  to  pay  the  451.,  it  cannot  be  shewn  that 
the  plaintiff  thus  laid  *out  this  money  for  the  defendant's  use.  The  plaintiff  'a 
claim  on  this  count,  therefore,  cannot  be  supported." 

2.  OF  VOLUNTARY  PAYMENTS  MADE  WITHOUT  REQUEST  ;  AND  THE 
PARTY  PAYING  NOT  BEING  UNDER  ANY  LEGAL  LIABILITY  TO 
PAY,  &c. 

No  person  can  by  a  voluntary  payment  of  the  debt  of  another  make  himself 
that  man's  creditor,  and  recover  from  him  the  amount  of  the  debt  so  paid,  (h) 
So,  where  money  is  paid  against  the  express  consent  of  the  party  for  whose  use 
it  is  supposed  to  have  been  paid,  no  action  will  lie  for  the  money  so  paid. 
Thus,  in  the  case  of  Stokes  and  another,  overseers  of  St.  Vedast,  otherwise 
Foster  v.  Lewis  and  another,  overseers  of  St.  MichaeVs  he    Quern, (i)   which 


(?)  8  Taunl.  268.  310. 

(A)   Per  Lord    Kenyon,    8  Term  Rep.  813.  (i)  1  Term  Rep.  50. 

*392 


Chap.  6.]     On  Promises  to  Repay  Money  Paid.  392 

was  an  action  for  money  paid,  laid  out,  and   expended  by   the  plaintiffs,  to  the 
use  of  the  defendants  ;  and  the  question  arose  upon  the  payment  of  a  sexton's 
salary.     At  the  trial  before  Lord  Mansfield  Ch.  J.,  it  appeared,  that  by  the  act 
22  and  23  Car.  2.  c.  11.  which  was  an  additional  act   for  rebuilding  the  city  of 
London  after  the   great  fire,  and  uniting  parishes,  &c.,  amongst  others,  the  pa- 
rishes of  St.    VedasCs  and  St.  Michael  he  Quern  were  united ;  and  that,  since 
that  time,  one  set  of  officers   had  served  for  the  two  parishes,   the  election  of 
whom  had  always  been  made  at  a  joint  vestry  ;  that  only  nine  vacancies  in 
the  office  of  sexton  had  happened  since,  all  of  which  had  been  filled  up  agree- 
ably to  this  custom  ;  that,  in  the  year  1759,  the  sexton's  salary  was  fixed  at  20/. 
per  annum,   which  was  agreed   to  be  paid  equally   by  both   parishes  ;  that  the 
overseers   of  St.  Vcdasfs  had  paid  the  sexton  who  was  last  chosen  the  whole 
sum  ;  to  recover  a  moiety  of  which  this  action  was  brought.     The  defence  set 
up  was,  that  the  last  election  of  a  sexton  was  not  a  joint  one  ;  and  that  the  pa- 
rish of  St.  MichaeVs  claimed  a  right  of   choosing  a  separate  sexton   for  them- 
selves; of  which  they  had  given  notice  to   the  other  parish.     The  Court  were 
of  opinion  that  this  action  could  not  be  maintained  ;  and  Lord  Mansfield.  Ch.  J. 
said,  "  The  dispute  arises  concerning  the  election  of  a  sexton,  and  the  way  of 
trying  it  is  by  refusing  to  pay  the  sexton  elected  ;  the  whole  is  notoriously  in 
litigation.     Under  these  circumstances,  therefore,  one  parish  paid  the  quota  of 
the  other  in  spite  of  their  teeth :  then,  can  it  be  said  that  this  action   for  money 
paid,  laid  out,   and  expended,   will  lie  ?  certainly   not.     This  action  must  be 
grounded  either  on  an  express  or   implied  consent :    here   is   neither.     Another 
strong  objection  to  this  action  is,  that  it  is  trying  the  right  of  the  sexton  without 
his  being  a  party  to  it." 

*3.  OF  PAYMENTS  MADE  ON  ACCOUNT  OF  ANOTHER  UNDER  A  DIS- 
TRESS FOR  RENT,  IN  ORDER  TO  REDEEM  THE  GOODS,  &c,  DIS- 
TRAINED: AND  OF  PAYMENT  BY  A  TENANT  OF  THE  LANDLORD'S 
TAXES,  &c. 

1.  Of  Payment  or  Arrears  of  Rent  under  a  Distress.] — The  goods 
of  A.  on  the  premises  of  B.,  C.  and  D.  were  distrained  by  the  landlord  for 
rent  in  arrear ;  and  A.  was  obliged  to  pay  the  rent  to  redeem  them.  It  was 
held  that  A.  might  maintain  an  action  of  assumpsit  for  money  paid  to  the  use 
of  B.,  C.  and  D.  although  the  two  latter  had  previously  assigned  their  interest 
in  the  premises  to  B.  Thus,  in  the  case  of  Exall  against  Partridge  and 
two  others,(/c)  which  was  an  action  upon  promises  for  money  paid,  &c. : 
at  the  trial  before  Lord  Kenyon  Ch.  J.,  it  appeared,  in  evidence,  that  the 
three  defendants  were  lessees  of  certain  premises,  by  deed,  from  one 
Welch,  to  whom  they  thereby  covenanted  to  pay  the  rent,  and  that  two  of  the 
defendants  afterwards,  with  the  plaintiff's  knowledge,  assigned  their  interest  to 
Partridge,  the  other  co-lessee,  who  was  a  coach-maker  :  subsequent  to  which 
assignment,  the  plaintiff  put  his  carriage  upon  the  premises,  under  the  care  of 

(k)  8  Term  Rep.   308.     3  Esp.  Rep.  8.  S.  C. 

48  *393 


393  On  Promises  to  Repay  Money  Paid'    [Part  II. 

Partridge,  where   it  was  taken  as  a    distress  by   Welch,  the  landlord,  for  rent 
in  arrear.     And  the  plaintiff,  in  order  to   redeem  it,   was    obliged  to  pay  the 
rent  due,  taking  at  the  time  a  receipt  from  Welch's  attorney,  as  for  so  much  re- 
ceived on  account  of  the  three  defendants.     The  action  was  brought  to  recover 
that  sum  ;  but  the  plaintiff  was  nonsuited,  on   the  ground  that  the  action  should 
have  been  brought  against  Partridge  alone,  he  being  the  person  in  the  sole  pos- 
session of  the  premises  at  the  time,  with  the  knowledge  of  the  plaintiff,  who 
had   trusted   him  only  with  the  possession  of  his  properly,  and  he  also  being 
the   person   ultimately  responsible  to   the  other  two  defendants  ;  and  therefore 
it  was  said  that   the  money  must  be  taken  to  have  been  paid   to  his  use  only. 
However,  upon  a  motion  to   set   aside   this   nonsuit,   his  lordship  changed  his 
opinion  ;  and  the  court,  after  argument,  determined  that  the  action  was  rightly 
brought  against  the  three  defendants,  who  were  all  liable  by  their  covenant  to 
pay  the  landlord  the  rent  in  question." 

But  if  the  goods  had  been  sold  under  the  distress,  and  the  landlord  had  re- 
ceived the  money,  this  form  of  action  could  not  be  maintained.  (I) 

2.  Of    Payment  of  Landlord's  Taxes,  &c.  by  a  Tenant.]     Where  the 
tenant  01  premises  under  a  lease,  and  at  a  rent   payable  half-yearly,   agreed 
to  pay  all  taxes  except   the  landlord's  property-tax,  which  the  landlord  agreed 
to  allow,  and  the  tenant  agreed  to  lay  out   20/.  in  *repairs,  which  the  landlord 
also  agreed  to  allow ;  but  afterwards  distrained  for  half  a  year's  rent,  and  sold 
to  the  whole  amount,  without  allowing  either  for  repairs  or  property-tax,   which 
he  knew  the  tenant  had  paid  to  the  collector  :  it   was  determined  that  the    ten- 
ant might  recover,  in  respect  of  the  property-tax,  but  not  in  respect    of  the   re- 
pairs.{in)      So,  in  the  case  of  Dawson  v.  Linton, (n)  where  the  question  was   as 
to  the  liability  of  the  defendant  to  repay  to  the  plaintiff  the  sum  of  20/.  14s.  for 
a  drainage-tax.     It  appeared,  that  the  plaintiff  had  been  tenant  to    the   defen- 
dant of  a  farm  situate  within  a  certain   district,  liable    to  a    drainage-tax  of  1*. 
per  acre :  he  paid  his  rent  in    full  to  the   defendant ;  and  quitted  the   farm   on 
the  6th  of  April,  1820,  but  did  not  pay  the  drainage-tax  then    due.     When  he 
quitted,  by  the  permission  of  the  incoming  tenant  he    left  a  stack  of  wheat  on 
the  premises.     A  demand  being,  in  July,  1820,  made  on  the  incoming  tenant  by 
the  collector  for  the  year's   drainage-tax    due  6th  of  April,    1820,   the   tenant 
refused   to    pay  it;  and    a  warrant  of   distress    having    been     obtained,  the 
plaintiff's    stack   of  wheat  was  distrained,    and   in   consequence   the    plaintiff 
was   obliged  to  pay  the  amount  of  the  tax.     By  the  local  act   it  was  provided, 
that  the  tax  should  be  paid  by  the  tenants    of  the  lands    and    grounds  charged 
with  the  same  respectively  ;  and   that  such    tenants  should    and  might    deduct 
and  retain  the  same  out  of  the  rents  payable  to  their  landlord  ;  and    also   that 
in  case  of  neglect  to  pay,  the  tax  might  be  levied  by  distress  on  the  goods  and 
chattels  which  should  be  found  on  the  lands  charged  with  the   tax  in   arrear ; 

(l)   Mcores-.Pyrke,  11   East  52.     See  also  (m)   Graham  v.  Tate,  1  Maulc&  Sel.  609. 

Greaves  v.  Htpke,  2  Earn.  &  Aid.  131.  (>i)  5  Barn.  &  Aid.  521. 

*394 


Chap.  6.]     On  Promises  to  Repay  Money  Paid.  394 

and  if  the  same  should  be  untenanted,  or  no  sufficient  distress  could  be 
found,  the  lands  and  grounds  chargeable  should  remain  as  a  surety  for  the 
payment  thereof,  and  might  be  taken  possession  of,  and  let  in  discharge  of  the 
tax.  It  was  contended  at  the  trial,  that  the  succeeding  tenant  was  liable 
for  the  tax,  and  therefore  that  the  action  should  have  been  against  him.  The 
plaintiff,  however,  had  a  verdict.  And  the  Court  of  King's  Bench  were  of 
opinion  that  that  verdict  was  right.  And  Abbott,  Ch.  J.  said,  "  It  is  clear 
that  this  tax  must  ultimately  fall  on  the  landlord,  and  that  the  plaintiff  has  paid 
his  money  in  discharge  of  it ;  he  has,  therefore,  a  right  to  call  upon  the  land- 
lord to  repay  it  to  him.  I  think  the  meaning  of  the  act  was  to  make  the  tax 
payable  by  the  tenant  in  whose  time  it  became  due,  and  who  received  the  benefit 
of  the  drainage.  If  it  had  then  been  paid,  the  plaintiff  might  have  deducted  it 
from  his  rent ;  but  as  he  was  not  called  on  to  pay  it  till  after  the  rent  had  been 
paid,  I  think  he  has  now  the  right  to  require  the  landlord  to  reimburse  him. 
It  might  be  very  hard  if  the  new  tenant  were  to  be  compelled  to  advance  mo. 
ney  to  pay  the  tax  for  his  predecessor,  even  though  ultimately  he  would  be  en- 
titled to  recover  it.  Here  the  action  is  only  for  money  paid  for  the  defendant, 
*and  not  for  any  special  damage  arising  from  the  distress.  The  verdict  is 
therefore  right." 

But  where  a  tenant  continues  to  pay  the  landlord's  taxes  for  several  succes- 
sive years,  without  deducting  them  out  of  his  future  rent,  he  cannot  recover  them 
by  action  at  law.  Thus,  in  the  case  of  Spragg  v.  Hammond,  (o)  which  was  an 
action  brought  to  recover  the  sum  of  48Z.  5s.  Id.  as  so  much  paid  by  the  plain- 
tiff to  the  defendant's  use  :  the  facts  of  the  case  were  these  :  The  plaintiff 
held  certain  premises  under  a  lease  from  the  defendant,  the  lease  being  silent 
as  to  the  payment  of  the  land-tax.  In  1814,  the  defendant  distrained;  and  at 
that  time  insisted  on  the  payment  of  the  rent  in  arrear,  refusing  to  let  the  land- 
tax  be  deducted  ;  and  accordingly  received  his  rent  in  full,  alleging  that  he 
had  nothing  to  do  with  the  tax  in  question.  The  plaintiff  about  this  time 
or  shortly  after  (viz.  on  the  13th  December,  1814,)  applied  by  his  attorney  to 
have  the  sums  so  paid  refunded,  and  protested  against  his  future  liability  to  pay. 
The  defendant,  however,  still  refused  to  deduct,  professing  his  readiness  to  ap- 
pear to  any  action  that  might  be  brought ;  and  from  this  time,  down  to  1819, 
the  plaintiff  went  on  regularly  paying,  without  deducting  or  claiming  to  deduct 
out  of  the  rent  the  tax  in  dispute,  or  renewing  in  any  sort  the  objection  of  his 
non-liability  to  pay.  The  Court  determined,  upon  a  review  of  all  the  cases  on 
the  subject,  that  the  plaintiff  could  not  recover  any  of  the  sums  so  paid  for  land- 
tax. 


(o)  Brgd.  &  Bing.  59.  See  also  Dmby  v.  Miore,  1  B.irn.  &  Aid.  123.  S.  V.Andrexc  and 
Hancock,  1  Brod.  &  Bin<*.  37.  3  Moore,  279.  S.  P.  Nor  can  the  tonant  plead  such  payments 
in  bar  in  replevin  to  a  distress  for  rent.     Slubbs  v.  Parsons,  3  Barn.  &  Aid.  516. 

*395 


395         On  Promises    to    Repay  Money  Paid.     [Part  II. 

4.  OF  MONEY  PAID  FOR  ANOTHER  UPON  BILLS  OF   EXCHANGE,  PROM- 
ISSORY NOTES,  OR  OTHER  SECURITIES. 

If  A.  accepts  a  bill  of  exchange  merely  for  the  accommodation  of  B.  and 
when  it  becomes  due  an  action  is  brought  thereon  by  the  holder  against  A., 
who  defends  it  at  the  instance  of  B.,  and  the  holder  recovers  the  full  value  and 
costs,  which  are  afterwards  paid  by  A.,  the  latter  may  maintain  an  action  of 
indebitatus  assumpsit  against  B.  for  the  amount  thereof,  as  for  so  much  money 
paid,  laid  out,  and  expended  to  his  use.  Thus,  in  the  case  of  Howes  v.  Mar- 
tirty(p)  which  was  an  action  of  assumpsit  for  money  paid,  laid  out  and  expended 
by  the  plaintiff,  to  the  use  of  the  defendant.  Upon  the  trial  these  facts  ap- 
peared in  evidence :  the  plaintiff  and  defendant  having  lived  in  habits  of  inti- 
macy, the  plaintiff  had  been  induced,  out  of  motives  of  friendship,  and  merely 
to  accommodate  the  defendant,  to  accept  several  bills  of  exchange  on  his  ac- 
count. These  bills  had  all  been  regularly  taken  up,  as  they  became  due,  by 
the  defendant,  except  the  last,  which  was  for  20tf.  This  bill  *had  eome  into 
the  hands  of  one  Grecnsill,  and  the  defendant  being  unable  to  take  it  up  when 
due,  had  prevailed  upon  Grecnsill  to  accept  16/.  in  part,  and  the  plaintiff's  ac- 
ceptance for  six  guineas,  being  the  balance  of  the  bill,  with  the  interest  then 
due  for  the  remainder.  This  bill  for  six  guineas  not  being  paid  when  due, 
Greensill  brought  his  action  on  it  against  Howes?  the  now  plaintiff,  as  the  ac- 
ceptor. On  the  action  being  brought,  the  plaintiff  acquainted  Martin  with  the 
circumstance,  and  he  desired  the  present  plaintiff  to  defend  the  action,  repre- 
senting to  her,  that,  as  she  had  never  received  any  consideration  for  the  accep- 
tance, she  might  safely  do  it.  In  consequence  of  which  representation  she  did) 
defend  the  action  ;  but  Grecnsill  the  plaintiff  in  that  action,~obtained  a  verdict 
against  her  for  the  amount  of  the  bill,  which,  with  the  costs,  amounted  to  32Z. ; 
to  recover  which  sum  this  action  was  brought :  but  the  counsel  for  the  defen- 
dant objected  that  this  case  came  within  the  statute  of  frauds,  29  Car.  2.  c.  3. 
the  object  of  the  action  being  to  recover  from  the  defendant  a  sum  of  money 
which  was  the  debt  and  costs  in  an  action  against  the  plaintiff  herself,  on  her 
own  acceptance,  and  which,  therefore,  was  to  be  deemed  her  own  debt ;  but  as 
there  was  no  note  in  writing  the  action  was  not  maintainable. 

Lord  Kenyon  Ch.  J.  overruled  this  objection,  and  held  that  the  case  was  not 
within  the  statute  of  frauds.  His  Lordship  said,  "  that,  in  this  ease,  it  appear- 
ed that  the  plaintiff  never  had  any  consideration  whatever  for  the  acceptances, 
which  were  given  merely  on  the  defendant's  account,  and  for  his  use  ;  that  the 
defence  to  the  action  on  the  note  was  on  his  account,  and  from  whence  he  could 
have  derived  a  benefit ;  that  as  he  therefore  was  personally  interested,  and  di- 
rected the  defence  to  be  made,  by  which  he  might  have  been  benefitted,  that 
the  money  must  be  considered  to  have  been  laid  out  by  the  plaintiff  on  his  ac- 


(/>)  1  Esp.  Ron.  162. 
'396 


Chap.  6.]     On  Promises  to  Repay  Money  Paid.        396 

count,  and  to  his  use  ;  and  that  she  therefore  was  entitled  to  iecoverit  back 
from  him." 

So,  where  A.  lent  his  acceptances  to  B.  before  his  bankruptcy,  but  which 
were  not  paid  till  afterwards,  A.  may  maintain  an  action  against  the  defendant 
for  money  paid  to  his  use,  notwithstanding  his  bankruptcy  and  certificate,  and 
notwithstanding  the  defendant,  before  his  bankruptcy,  gave  his  receipt  to  A.  ac- 
knowledging the  receipt  of  so  much  money  as  the  acceptances  amounted  to.(^) 

But,  in  the  case  of  Houle  v.  Baxter •,(/*)  which  was  also  an  action  of  assnmp' 
sit  on  promises ;  and  the  first  count  of  the  declaration  stated  that  one  E.  Cap- 
per on  the  22d  of  September,  1796,  drew  a  bill  of  exchange  upon  the  defendant 
for  25/.,  payable  at  three  months  after  date  to  Capper's  order,  which  Capper 
indorsed  to  the  plaintiff,  and  the  defendant  accepted.  The  second  count,  after 
setting  out  the  bill  and  *acceptance,  and  the  indorsement  by  Capper  to  the  plaintiff, 
further  stated  an  indorsement  and  delivery  of  the  bill  to  one  W.  Abud ;  a  present- 
ment of  it,  when  due,  to  the  defendant  for  payment,  and  his  refusal ;  whereupon 
the  plaintiff  was  obliged  to  pay  Abud  the  money.  There  was  also  a  count  for 
money  paid,  Sfc.  The  defendant  pleaded,  that  he  became  bankrupt  on  the  7th 
November,  1796.  At  the  trial  a  verdict  was  found  for  the  plaintiff,  subject  to 
the  opinion  of  the  Court  of  King's  Bench  on  the  following  case  :  "  The  defen- 
dant, before  his  bankruptcy,  kept  a  retail  silversmith's  shop,  and  dealt  with 
Capper,  the  drawer  of  the  bill,  who  was  a  working  silversmith.  On  the  22d  of 
September,  1796,  the  defendant  ordered  a  parcel  of  goods  of  Capper,  and  in 
order  to  enable  him  to  raise  silver  to  make  up  such  goods  the  defendant  accept- 
ed the  bill  of  exchange  mentioned  in  the  declaration  :  Capper  indorsed  the  bill ; 
and  the  plaintiff,  at  Capper's  desire,  though  without  the  defendant's  privity,  in- 
dorsed it  likewise,  receiving  no  value  or  consideration  whatever  for  so  doing,  but 
merely  to  give  additional  credit  to  the  bill.  The  bill  being  thus  drawn,  accept- 
ed, and  indorsed,  Capper  took  it  to  one  Abud,  a  refiner,  who,  on  the  credit  of 
the  bill,  delivered  to  Capper  a  part  of  the  amount  in  silver,  and  gave  him  the 
rest  in  cash.  This  silver  was  afterwards  manufactured  by  Capper  into  the 
goods  ordered  by  the  defendant,  which  were  accordingly  delivered  to  him. 
The  defendant  became  a  bankrupt  on  the  7th  of  November,  1796,  and  after- 
wards obtained  his  certificate.  On  the  24th  of  December,  1796,  being  the  day 
before  the  bill  became  due,  the  plaintiff  went  to  Abud,  and  took  it  up,  paying 
him  the  amount." 

Grose  J.  delivered  the  opinion  of  the  court  as  follows  :  "  In  this  case  the 
plaintiff  contracted  no  liability  at  the  defendant's  request.  He  never  became 
surety  for  him  in  this  transaction.  His  demand  against  the  defendant,  the  ac- 
ceptor, arises  solely  upon  the  bill,  and  there  was  nothing  to  prevent  his  proving 
it  under  the  commission.  We  are  therefore  of  opinion,  that  the  defendant's  bank- 
ruptcy is  a  bar  to  thisaetion,  and  consequently  that  there  ought  to  be  judgment 
for  the  defendant." 


(<7)  Snailhv.  Gale,  7  Term  Rep.  364.  But     on  Bills,  5S0.  5  Ed. 
see  the  stat.  49  Geo.  3.  c.  121.  s.  8.  and  Chitty        (r)  3  East  Rep. 

*397 


397  On  Promises  to  Repay  Money  Paid-     [Part  II. 

So,  where  A.  and  BM  for  (heir  mutual  accommodation,  exchange  acceptances 
for  acceptances,  or  bills  of  exchange  for  bills  of  exchange,  for  equal  sums,  and 
both  parties  negotiate  the  bills  ;  and  after  this  transaction  A.  and  B.  both  be- 
came bankrupts  ;  and  the  estate  of  A.  pays  more  upon  B.'s  acceptances  than 
the  estate  of  B.  does  upon  A.'s  acceptances  ;  no  action  of  indebitatus  assump- 
sit will  lie  against  B.  upon  an  implied  promise  to  pay  the  amount  of  the  differ- 
ence so  paid  by  the  assignees  of  A.  ;  the  remedy  being  upon  the  bills  of  ex- 
change only,  which  were  provable  under  the  commission  of  B.(s) 

♦But  where  a  bill  is  paid  for  the  honour  of  the  drawer,  he  is  liable  to  an 
action  of  indebitatus  assumpsit  for  money  paid  for  the  amount  of  the  bill.  This 
was  settled  in  the  case  of  Smith  and  another  v.  Nissen  and  another,(f)  which 
Avas  an  action  for  money  paid,  laid  out  and  expended.  At  the  trial,  before  Bub 
ler,  J.  a  verdict  was  found  for  the  plaintiffs  under  the  following  circumstances : 
One  Taubert  sent  an  order  to  the  defendants  for  goods,  and  desired  that  they 
would  draw  a  bill  on  the  plaintiffs  for  the  value,  which  the  defendants  accord- 
ingly did  after  they  had  sent  the  goods.  The  plaintiffs,  in  a  letter  written  to 
the  defendants  on  the  23d  September,  said,  that  they  could  not  accept  the  bill  on 
account  of  Taubert  at  present,  because  they,  (the  defendants)  had  sent  a 
larger  quantity  of  goods  than  were  ordered  ;  adding,  that  they  had  written 
to  Taubert  for  further  directions.  Two  days  afterwards  the  defendants  wrote 
to  the  plaintiffs,  pressing  that  the  bill  might  be  taken  up ;  and  on  the  28th 
of  the  same  month  received  for  answer,  that  the  plaintiffs  had  written  to  Tau- 
bert, and  were  waiting  for  his  answer  before  they  could  accept ;  and  that  they 
had  desired  the  holder  to  keep  the  bill  in  the  mean  time.  On  the  14th  Octo- 
ber, Taubert,  in  a  letter  to  the  plaintiffs,  took  notice  that  the  orders  had  been 
exceeded,  but  desired  that  they  would  accept  the  bill,  and  draw  upon  Govertz 
at  Hamburgh,  for  the  amount;  in  consequence  of  which  the  plaintiffs  drew  on 
Govertz,  who  refused  to  accept ;  and  afterwards  the  plaintiffs  paid  the  bill  for 
the  honour  of  the  drawer ;  to  recover  back  the  amount  of  which  the  action 
was  brought.  A  motion  was  afterwards  made  for  a  rule  to  show  cause  why 
the  verdict  should  not  be  set  aside,  upon  the  ground  that  the  plaintiffs  had  ac- 
tually accepted  the  bill  drawn  upon  them.  The  counsel  for  the  defendant  ad- 
mitted that  notwithstanding  Taubert'' s  letters,  the  plaintiffs  might  have  chosen 
whether  they  would  accept  or  not:  but  he  contended,  that  they  had  only  a  right 
to  draw  on  Govertz,  upon  condition  that  they  themselves  should  accept  the  bill 
drawn  upon  them,  and  therefore  that  their  drawing  upon  Govertz  was  an  implied 
acceptance  of  that  bill.  But  the  court  held,  "  that  what  the  plaintiffs  had  done 
did  not  amount  to  an  acceptance,  for  they  never  meant  to  make  themselves  lia- 
ble, unless  the  bill,  drawn  upon  Govertz,  was  accepted  and  paid  ;  and  they 
would  not  imply  a  contract  which  the  parties  themselves  had  refused  to  enter 
into." 


(.»)  Buckler  v.  Buttwant,  3  East  Rep.  72.,        (t)  1  Term  Rep.,269. 
and  see  Cowley  v.  Dunlop.  7  Term  Rep.  565. 
*393 


Chap.  6.]     On  Promises  to  Repay  Money  Paid.         398 

5.     OF    MONEY    PAID  OR    SECURITIES    GIVEN    BY  A   SURETY   OR  BAIL 
ON  BEHALF  OF  THEIR  PRINCIPAL. 

Where  money  is  paid   by   a   surety  in  discharge  of  a  bond   entered  into  by 
him  for  his   principal,    he    may    recover    against  his    principal   the    amount, 
by  action  of  indebitatus  assumpsit    for  money  paid,  upon  an  *implied  promise 
to  pay,  &c.(w)     So,  a  surety  in  a  bond  who  pays  the  debt  of  his  principal  after 
a  commission  of  bankruptcy  issued  against  the  latter,  is  not  barred  by  the  cer- 
tificate of  the  principal,  though  the  penalty  of  the  bond  was  forfeited  before. 
Thus,  in  the  case  of  Taylor  v.  Mills  and  Magnall,{v)  which  was  an  action  of 
indebitatus  assumpsit  for  money  paid,  laid  out,  and  expended  by  the    plaintiff 
to  the  use  of  the  defendants.     The  defendants,  Mills  and  Magnall,  were  part- 
ners with  one  Bailey  ;  and  in  order  to  raise   money,  the   partner  had   entered 
into  bonds.     In  the  year   1765,   Bailey  withdrew  from   the  partnership  ;  and 
wishing  to  be  discharged  from  these  bonds,  application  was  made  to  the  plain- 
tiff to  become  surety  instead  of  Bailey.      He  did  so.     Upon  which   the  former 
bonds  were  delivered  to  Bailey  to  be  cancelled  ;  the  bonds  became   due  ;  then 
the  defendants  became  bankrupts.     When  the  obligees  had  got  as  much  money 
as  they  could  from  the  partnership  estate,  and  which  amounted  to  no  more  than 
6s.  in  the  pound,  they  came  upon  the  plaintiff  for  the  residue.     He  accordingly 
paid  it ;  and  then  brought  his  action  for  money  paid,  laid  out,  and  expended. 
At  the  trial,  an  objection  was  made  that  the  bonds  were  not  executed  by  Mag- 
nall ;  in  answer  to  which  an  affidavit  was  produced  by  Magnall,  in  which  he 
admitted  he  was  liable  as  well  as  the  rest,  and  would  have  executed   the  bonds 
if  he  had  been  in  the  country  at  the  time.  Upon  this  the  jury  found  a  verdict  for 
the  plaintiff.     A  motion,  however,  was  afterwards  made  for  a  new  trial,  but  the 
Court  of  King's  Bench  were  clearly  of  opinion  that  the  certificate  was  no  bar 
of  the  action,  and  that  the  plaintiff  was  entitled  to  recover. 

So,  also  the  arrears  of  an  annuity  paid  by  a  surety  for  the  grantor  after  his 
bankruptcy,  is  not  barred  by  his  certificate,  (w) 

But  if  a  surety,  (who  becomes  bound  in  a  bond  with  his  principal  for  payment 
of  money  by  instalments,)  takes  a  bond  from  his  principal,  conditioned  for 
payment  of  the  amount  of  the  instalments  before  the  first  of  them  will  be  due  ; 
and  before  that  time  the  principal  become  bankrupt,  and  obtain  his  certificate  ; 
and  afterwards  the  first  bond  be  discharged  by  the  surety,  he  cannot  maintain 
an  action  of  assumpsit  against  the  principal  for  money  paid  to  his  use  ;  his 
remedy  being  only  upon  the  bond,  (x) 

Where  a  person  becomes  bail  to  an  action  he  is  entitled  to  recover  from  the 
principal  in  this  form  of  action,   all   monies  paid  and  expenses  he  has  incurred 

(u)  2  Term  Rep.  104.  Esp.  N.  P.  96.  and  2  Barn.  &  Cres.  316. 

(v)  Cowp.  525.     See  also  Paidv.  Jones,  1  (.r)  2  Term  Rep.  100.     Toussaint  v.  Mar- 

Term  Rep.  599.  tinnant,  see  also  Martin  v.    Court,  2  Term 

(io)   Welsh  v.   Welsh,  4  Maule  &  Sel.  333.  Rep.  640.     Hodgson  v.  Bell,  7  Term  Rep.  97. 

Flanagan  v.  Watkins,  3  Barn.  &  Aid,  186.,  and  Ex  parte  Walker,  4  Ves.  373. 

*399 


399  On  Promises  to  Repay  Money  Paid.      [Part  II. 

in  sending  after  the  principal  in  order  to  take  him,  for  the  purpose  of  making  a 
render  ;  but  he  cannot  recover  the  *costs  of  an  action  brought  for  the  trouble, 
&c.  of  seeking  after  the  principal,  (y) 

If  a  person  gives  a  promissory  note  for  the  debt  of  another,  -which  the  creditor 
accepts  in  payment,  it  has  been  held,  that  this  amounts  to  a  payment  of  money 
to  the  party's  use,  and  may  be  recovered  as  such.  Thus,  in  the  case  of  Bar- 
clay and  Proctor  v.  Gooch,(z)  which  was  an  action  of  assumpsit  brought  to 
recover  a  sum  of  50/.  as  so  much  money  paid  to  the  use  of  the  defendant. 
The  facts  were  these  :  The  plaintiffs  were  brewers,  and  the  defendant  was  a 
publican,  who  rented  one  of  their  houses,  at  which  a  benefit  club  was  held ; 
the  members  of  the  club  distrusting  the  credit  of  Gooch,  (the  then  landlord,) 
the  plaintiffs  became  his  security  for  the  amount  of  the  subscription  money 
contained  in  the  box  ;  this  amounted  to  50/.  Gooch  afterwards  became  insolvent, 
and  the  club  called  upon  the  plaintiffs  for  the  money  as  his  security,  and  took 
their  note  of  hand  for  it,  payable  with  interest.  The  question  was,  whether 
this  was  a  payment  of  money  to  the  use  of  the  defendant  on  which  the  plain- 
tiffs could  recover  on  the  count  for  money  paid  1  And  upon  which  Lord  Kenyon 
Ch.  J.  held,  "  That  the  club  having  consented  to  take  the  note  from  the  plain- 
tiffs, it  was  as  payment  to  them  of  the  money  due  by  the  defendant ;  it  was 
payment  of  money  to  his  use,  and  so  the  action  was  maintainable." 

But  in  the  case  of  Taylor  v.  Higgins,(a)  where  it  appeared  that  the  defen- 
dant being  indebted  to  Mr.  Cresswell,  and  being  pressed  for  payment,  he  pre- 
vailed on  the  plaintiff,  Taylor,  to  join  with  him  in  a  bond  to  Cresswell  for  150/. 
That  in  August,  1800,  the  plaintiff  and  the  defendant  being  both  arrested,  and 
then  in  custody  at  the  suit  of  Cressicell,  in  an  action  on  the  bond,  the  defendant 
paid  the  costs,  and  part  of  the  debt,  and,  together  with  the  plaintiff,  executed  to 
Cresswell  a.  new  warrant  of  attorney  for  120/.,  the  remainder  of  the  debt.  In 
December  following  the  defendant  was  arrested  at  the  suit  of  Cresswell,  and 
detained  in  custody  ;  and  in  July,  1801,  the  present  plaintiff  and  the  defendant, 
being  both  then  in  custody,  a  declaration  by  way  of  detainer,  was  lodged 
against  them  by  Cresswell ;  and  on  the  10th  of  August  following  the  defendant 
took  the  benefit  of  an  insolvent  debtor's  act,  and  was  discharged  under  it.  In 
September,  1802,  the  defendant  was  arrested,  and  holden  to  bail  in  this  action 
by  Taylor  for  120/.  on  the  affidavit  to  hold  to  bail  before  mentioned :  where- 
upon application  was  made  by  the  defendant  to  Cresswell,  to  know  whether 
Taylor  had  paid  him  any  money  on  account  of  the  defendant,  which  was  an- 
swered in  the  negative ;  but  that  after  the  defendant's  discharge  under  the 
insolvent  debtor's  act,  Taylor  had  given  Cresswell  a  new  bond  and  warrant  of 
attorney  for  the  *  whole  debt  of  120/.,  (for  which  this  action  was  brought,)  no 
part  of  which  had  yet  been  paid  ;  but  as  appeared  by  the  plaintiffs  affidavit,  he 
had  at  that  time  paid  to  Cresswell  about  71.  or  8/.  for  costs  :  and  he  also  swore, 

(y)  Fisher,  v.  Fallows,  5  Esp.  Rep.  171.  (a)  3  East  Rep.  169.     See  also  Maxwell 

(z)  2  Esp.  Rep.  871.    See  also  3  Wills.  14.    v.  Jameson,  2  Barn.  &  Aid.  51.  S.  P. 
Per  curiam,  S.  P. 

*400  *401 


Chap.  6.]        On  Promises  to  Repay  Money  Paid-  401 

that  when  such  new  security  was  given  it  was  accepted  as  payment  and  satis- 
faction of  the  whole  debt ;  and  the  old  bond  and  warrant  of  attorney  were 
cancelled.  Upon  this  case  Lord  Ellenborough  Ch.  J.  (after  consulting  with 
the  other  judges  of  the  court,)  said  :  "  There  is  no  pretence  for  considering  the 
giving  this  new  security  as  so  much  money  paid  for  the  defendant's  use.  Sup- 
posing even  the  case  of  the  note  of  hand  or  bill  of  exchange,  as  the  current 
representative  of  money  to  have  been  rightly  decided,  still  this  security,  consist- 
ing of  a  bond  and  warrant  of  attorney,  is  not  the  same  as  that,  and  is  nothing 
like  money." 

«.   OF   CONTRIBUTION    BETWEEN    CO-SURETIES,    OR    OTHER   PERSONS 
JOINTLY  LIABLE  FOR  THE  DEBT  OF  THEIR     PRINCIPAL  :     AND  FOR 
CONTRIBUTION  AMONGST  CO-DEFENDANTS  FOR     DAMAGES    RECO- 
VERED AGAINST  THEM  JOINTLY,     EITHER    FOR  A  TORT    OR  TRES- 
PASS COMMITTED  BY  ALL  OF  THEM. 

Where  two  or  more  persons  become  surety  for  another,  and  one  of  the 
sureties  pays  the  debt  of  the  principal,  he  may  maintain  an  action  of  indebita- 
tus assumpsit  for  money  paid  against  each  of  the  co-sureties  either  upon  an  ex- 
press or  implied  promise  to  pay  his  aliquot  proportion  of  the  money  so  paid,  re- 
gard being  had  to  the  number  of  sureties.  (129)  Thus,  if  S.  and  B.  are  bound 
in  an  obligation  to  J.  S.  to  pay  a  certain  debt  for  J.  D.,  and  the  obligation  be- 
ing forfeited,  B.  says  to  S.,  that  if  he  will  pay  all  the  principal  to  J.  S.  he 
promises  to  repay  him  one  moiety,  and  therepon  S.  pays  all  accordingly  to  J. 
S.,  S.  may  have  an  action  upon  the  case  upon  this  promise  against  B.,  if  he 
will  not  pay  him  the  moiety  ;  for  though  he  might  have  been  charged  for  the 
whole  debt  by  the  obligee,  yet  the  payment  thereof  without  suit,  and  in  dis- 
charge of  B.,  is  a  good  consideration  to  maintain  the  action,  (b) 

So,  in  the  case  of  Cornell  v.  Edwards,  (c)  which  was  an  action  of  indebita- 
tus assumpsit  for  money  paid  by  the  plaintiff,  as  administrator,  under  the  follow- 
ing circumstances  :  "  John  Cuwell,  ihe  plaintiff's  intestate,  having  entered  in- 
to a  joint  and  several  bond  with  seven  other  persons,  two  of  whom  were  prin- 
cipals, and  the  five  others,  as  well  as  himself,  sureties,  was,  together  with  his 
co-sureties,  called  upon  by  the  obligee,  to  pay  the  sum  engaged  for  ;  the  de- 
fendant, and  two  of  the  other  sureties  paid  each  a  part  of  that  sum,  but  the 
present  plaintiff's  intestate  paid  the  residue.  Upon  this  the  plaintiff,  consider- 
ing the  defendant,  *and  one  of  the  two  sureties,  who  had  already  contributed  as 


(6)    Bagg  v.  Sladf,  1  Rol.  Abr.  20.   pi.    15.         (c)  2  Bos.  &  Pul.  268.     See  also    Deering 
Rol.  Rep.  354.     3    Bulst.    162.  Jenk.   324.     v.  Lord  11'inchelsea,  ib.  270.  S.  P. 
pi.   27. 


(129)  See  Johnson  v.  Johnson,  11  Mass.  Rep.  359.  Taylor  v.  Savage,  18  Mass.  Rep.  98. 
It  seems,  that  a  court  of  equity  will  not  compel  a  surety  in  a  bond,  to  contribute  to  a  co- 
surety, who  has  been  forced  to  pay  the  debt,  unless  it  be  made  to  appear,  that  due  dili- 
gence" was  used,  without  effect,  to  obtain  reimbursement  from  the  principal,  or  that  h« 
was  insolvent.    M' Cor  mack"  s  Admr.  v.    O'Bannon's  Ext.  3  Munf.  434. 

49  *402 


402  On  Promises  to  Repay  Money  Paid.       [Part II. 

the  only  solvent  sureties,  called  upon  them  to  pay  their  proportion,  and  brought 
this  action  to  recover  from  the  defendant  such  a  sum  of  money,  as  when  ad- 
ded to  what  had  been  already  paid  by  him  would  make  up  one-third  of  the  whole 
sum  paid  to  the  obligees,  deducting  only  what  had  been  contributed  by  the  fourth 
surety  not  called  upon  at  the  time."     On  behalf  of  the  defendant,  the   follow- 
ing objections  were  taken,  viz.  that  this  action  could  not  be  maintained  at  law 
by  one  co-surety  against  another  ;  that  if  the    action  could  be  maintained    for 
one-sixth  of  the  whole  sum  engaged  for,  and  which,  under  the   circumstances 
of  the  present  case,  he  insisted  was  all  that  could  be  recovered  from  the   defen- 
dant, yet,  that  the  insolvency   of  the  two  principals,  and    of  the  three  other  co- 
sureties, should  have  been  proved  in  order  to  entitle  the  plaintiff  to  the  present 
verdict.  The  Court  observed,  "  that  it  might  now,  perhaps,  be  found  too  late  to 
hold  that  this  action  could  not  be  maintained  at  law,  though  neither  the  insolven- 
cy of  the  principals,  or  of    any  of  the  co-sureties  were  proved ;  but  that  at   all 
events  the  plaintiff  could  not  be  entitled  to  recover  at  law  more  than  one-sixth 
of  the  whole  sum  paid.     And  Lord  Eldon  Ch  J.  said,  "  that  he   had  conversed 
with  Lord  Kenyon  upon  the  subject,  who    was    also  of  opinion,    that  no    more 
than  an  aliquot  part  of  the  whole,  regard  being  had  to   the  number    of  co-sure- 
ties, could  be  recovered  at  law  by  the  defendant ;  though   if  the    insolvency   of 
all  the  other  parties  were  made  out,  a  larger  proportion  might  be  recovered  in  a 
court  of  equity." 

So,  where  three  persons  are  jointly  liable  to  pay  a  debt,  and  two  of  them 
pay  it,  they  cannot  maintain  a  joint  action  against  the  third  to  recover  his  ali- 
quot proportion  ;  but  each  must  bring  a  separate  action  for  his  aliquot  share  of 
the  money  so  paid.  Thus,  in  the  case  of  Brand  and  Herbert  v.  Boulcott,(d) 
which  was  also  an  action  of  indebitatus  assumpsit  for  money  paid.  The 
facts  were  these  :  "  The  plaintiffs  sued  out  a  commission  of  bankrupt  against 
T.  L.  as  joint  petitioning  creditors,  and  were  chosen  assignees  under  that  com- 
mission, together  with  the  defendant ;  and  both  the  plaintiffs  and  the  defendant 
acted  as  assignees  under  the  commission.  Each  of  the  plaintiffs  paid  to  the 
solicitor,  under  the  commission,  the  sum  of  104Z.  in  discharge  of  his  bill  for 
expences  incurred  on  account  of  the  bankruptcy  ;  and  the  present  action  was 
brought  to  recover  the  defendant's  proportion  of  the  208/.  paid  by  the  plaintiffs." 
The  Court  determined  that  the  plaintiffs  could  not  maintain  a  joint  action,  but 
that  separate  actions  ought  to  have  been  brought  by  each  of  them  for  contribu- 
tion against  the  defendant. 

However,  where  A.  was  engaged  as  a  partner  in  a  particular  transaction 
with  B.  C.  and  D.  who  were  before  partners,  after  which  B.  C.  *and  D.  be- 
came bankrupts ;  and,  after  their  bankruptcy.  A.  paid  a  debt  due  from  himself 
and  them  to  a  joint  creditor  :  it  was  decided,  that  these  three  partners  consti- 

(d)  3  Boa.  &  Pul.  235.     See  aiso  Graham    hy    and    another   v.  Steel,  5   Esp.  Rep. 
and  othera  v.  Robertson,  2  T.  R.  282.  and  KeU     S.  P. 
•103 


Chap.  6.]     On  Promises  to  Repay  Money  Paid.  403 

tuted  but  one  debtor  to  A.,  and  that  he  might  recover  from  B.  the  proportion  of 
B.  C.  and  D.  towards  the  joint  debt,  B.  not  having  pleaded  in  abatement,  (c) 

If  A.  at  the  instance  of  B.  become  a  co-surety  with  him  for  the  debt  of  C.  ; 
and  B.  is  forced  to  pay  the  whole  debt,  he  cannot  recover  a  moiety  thereof 
from  A.  This  point  was  settled  in  the  case  of  Turner  v.  Davies,  (f)  which 
was  an  action  of  indebitatus  assumpsit  for  money  paid,  under  the  following  cir- 
cumstances: There  was  an  execution  in  the  house  of  one  Evans,  at  the  suit  of 
Brough,  for  23/.  ;  but  to  induce  Brough  to  withdraw  it,  and  to  secure  the  debt, 
Turner,  the  plaintiff,  and  Davies,  the  defendant,  joined  in  a  warrant  of  attorney 
to  Brough;  but  Davies  hnd  joined  inconsequence  of  having  been  applied  to 
by  Turner  and  Brough,  who  required  an  additional  security.  Turner,  the  plain- 
tiff, took  a  bill  of  sale  from  Evans,  for  his  own  security,  dated  20th  January, 
1796;  and  an  indorsement  was  made  on  it,  declaring  the  purpose  for  which  it 
was  given.  Another  execution  having  issued  against  Evans,  the  goods  were  tak- 
en in  execution,  and  Turner,  the  plaintiff,  had  paid  the  whole  of  Brough' 's  de- 
mand, and  afterwards  brought  this  action  against  the  defendant  for  contribution 
of  the  moiety.  But  the  Court  determined  that  such  action  would  not  lie.  And 
Lord  Kenyon  Ch.  J.  said,  "  I  have  no  doubt  that  where  two  parties  become 
joint  sureties  for  a  third  person,  if  one  is  called  upon  and  forced  to  pay  the 
whole  of  the  money,  he  has  a  right  to  call  on  his  co-security  for  contribution  : 
but  where  one  has  been  induced  so  to  become  surety  at  the  instance  of  the  oth- 
er, though  he  thereby  renders  himself  liable  to  the  person  to  whom  the  security 
is  given,  there  is  no  pretence  for  saying  that  he  shall  be  liable  to  be  called  upon 
by  the  person  at  whose  request  he  entered  into  the  security.  This  is  the  case 
here  :  Davies,  the  defendant,  became  security,  at  the  instance  of  Turner,  the 
plaintiff,  to  Brough ;  and  there  is  still  less  pretext  for  Turner  to  call  on  the 
defendants  in  this  action,  as  he  took  the  precaution  to  secure  himself  by  bill  of 
sale." 

Where  one  joint  contractor  pays  money  for  another  under  an  equitable  claim, 
he  may  recover  it  from  the  other  as  money  paid  to  his  use.  And  a  covenant 
not  to  sue  one  of  two  joint  debtors  does  not  operate  as  a  release  to  the  other. (g) 
But  where  A.  recovers  damages  in  an  action  of  tort  against  two  defendants, 
and  levy  the  whole  damages  on  one,  that  one  cannot  recover  a  moiety  thereof 
against  his  co-defendant  for  his  contribution.  Thus,  in  the  case  of  Merry- 
weather  v.  Nixon,(h)  where  it  appeared,  that  one  Starkey  brought  an  action  on 
the  case  against  the  *present  plaintiff  and  defendant,  for  an  injury  done  by 
them  to  his  reversionary  estate  in  a  mill,  in  which  was  included  a  count  in 
trover  for  the  machinery  belonging  to  the  mill  ;  and  having  recovered  840/.  he 
levied  the  whole  on  the  present  plaintiff,  who  thereupon  brought  this  action 
against  the  defendant  for  a  contribution  of  a  moiety,  as  for  so  much  money 
paid  to  his  use.     But  the  Court  of  King's  Bench  determined,  that  no  contribu- 


(t\  Vide   Wright  v.  Hunter,   1   East  Ren.         (g)  liulton  v.  Eyre,  6  Taunt.  239. 
20.  (A)  8  Term  Rep.  186. 

('/)  2  Esp.  Rep.  478. 


'404 


404  On  Promises  to  Repay  Money  Paid*         [Part  II. 

tion  could  by  law  be  claimed  as  between  joint   wrong-doers  ;  and  consequently 
this  action,  upon  an  implied  assumpsit,  could  not  be  maintained  on  the  mere 
ground  that  the  plaintiff  had  alone  paid  the   money  which  had  been  recovered 
against  him  and  the  other  defendant  in  that  action.     And  Lord  Kenyan  Ch.   J. 
said,  "  That  he  never  heard  of  such  an  action  having  been  brought,  where   the 
former  recovery  was   for  a  tort  ;  that   the  distinction   was   clear  between  this 
case  and  that  of  a  joint  judgment   against  several  defendants,  in  an  action  of 
assumpsit ;  and  that  this  decision   would  not  affect  cases  of  indemnity,   where 
one  man  employed   another   to   do   acts,    not  unlawful  in   themselves,  for  the 
purpose  of  asserting  a  right."     And  the  same  point  has  also   been  determined 
where  an  action  of  trespass  vi  et  armis  was  brought  against  several  co-tiespas- 
sers.(z)(130) 

So,  where  two  persons  agree  to  buy  stock  and  tickets  for  time,  on  specula- 
tion, upon  their  joint  account,  and  being  losers,  one  of  them  (without  the  know- 
ledge of  the  other)  pays  all  the  money,  he  cannot  maintain  an  action  for  con- 
tribution against  his  companion,  the  transaction  being  illegal. (k) 

But  it  has  been  since  determined,  that  if  two  persons  jointly  engage  in  a 
stock-jobbing  transaction,  and  incur  losses,  and  employ  a  broker  to  pay  the 
differences,  and  one  of  them  repay  the  broker,  with  the  privity  and  consent  of 
the  other,  the  whole  sum,  he  may  recover  a  moiety  from  that  other,  in  an  action  for 
money  paid  to  his  use,  notwithstanding  the  transaction  be  illegal,  and  contrary 
to  the  statute  7  Geo.  2.  c.  8.(Z) 

If  a  party  dine  at  a  tavern,  and  one  of  them  pays  the  reckoning  for  himself 
and  the  rest  of  the  company,  he  may  recover  from  the  others  their  aliquot  pro- 
portions, by  separate  actions  against  each,  (m)  (131) 

7.  OF  CONTRIBUTION  BY  THE  OWNERS  OF  ADJOINING  PROPERTY  TO- 
WARDS THE  EXPENSES  OF  BUILDING  PARTY-WALLS. 

By  the  stat.  14  Geo.  3  c.  78.  s.  41.  it  is  enacted,  "  That  the  person  or  per- 

(t)   Farebrother  v.  Jlnsley,  1  Campb.  343.  Rep.   61.,   and    Cannan  v.  Bryce,  3  Bam.  & 

(k)   Thxoailc  v.  Warner,  Lond.  Sitt.  Trin.  Aid.  179.  contra.  Note  also,  in  this  last  case 

1773.  Esp.  N.  P.  88.  all  former  cases  on  the  subject  are  cited. 

(<)  Petrie  and  another  v.  Hannay,  3  Term  (m)  Per  Lord  Ktnyon,  8  Term  Rep.  614.  1 

Rep.  418.    But  see  Steers  v.  Lasldy,  6  Term  Rol.  Abr.  24  pi.  31. 

(130)  See  Peck  v.  Ellis,  2  J.  Ch.  R.  131. 

(131)  Where  A.,  against  whom  there  is  a  judgment,  being  seised  of  land,  sold  part  of  it, 
and  died  seised  of  the  residue,  his  hsirs  are  bound  to  satisfy  the  judgment  as  far  as  they 
have  assets ;  and  they  are  not  entitled  to  contribution  from  the  purchaser  of  part  of  the  land 
of  their  ancestor  ;  for  they  stand  in  his  place  ;  and  besides,  there  is  no  equality  of  right  be- 
tween them  and  the  purchaser,  in  respect  to  the  judgment.  Clowes  v.  Dickenson,  5  J.  Ch. 
R.  235 ;  But  if  there  be  several  heirs,  and  the  judgment  creditor  levy  the  debt  from  a  part  of 
the  inheritance  allotted  to  one  of  them,  such  heir  is  entitled  to  contribution  from  his  co- 
heirs. Id.  So,  where  there  are  two  or  more  grantees  under  a  mortgagor,  whether  in  seve- 
ralty or  in  common,  if  either  of  them  pay  the  whole  money  due  on  the  mortgage,  the  other 
shall  be  holden  to  a  reasonable  contribution.  Taylor  v.  Porter,  7  Mass.  Rep.  355.  But  if 
services  be  rendered  for  the  benefit  of  several  persons,  and  one  of  them  only  be  liable  to  pay 
for  such  services,  he  can  sustain  no  action  against  the  others  for  a  contribution,  until  he  has 
paid  the  money,  or  made  satisfaction.     Webster  v.  Gage,  2  Mass.  Rep.  503. 

*105 


Chap.  0.]     On  Promises  to  Repay  Money  Paid*  405 

sons  at  whose  expence  any  party-wall,  or  party-arch  shall  be  built,  *agreeably  to 
the  directions  of  this  act,   shall   be  reimbursed  by  the  owner,  or    owners,  who 
shall  be  entitled  to  the  improved  rent  of  the  adjoining   building,  or  ground,  and 
who  shall,  at  any  time,  make  use  of  such  party-wall,  or  party-arch,   a  part  of 
the  expence  of  building  the  same,  in  the  proportion    after   mentioned ;  that  is 
to   say,  if  the  adjoining  building  then  erected,   or  afterwards  to  be  erected,    be 
of  the  same  rate  or  class  of  buildings  as,  or  superior  to,  the  building  belonging 
to  the  person  or  persons  at  whose  expence  the  said  party-wall  was  built,  then 
the    owner  or  occupier  of  such   adjoining    building,    or  ground,  shall  pay  one 
moiety  of  the  expence  of  building  so  much  of  the  said  party-wall,  or   party- 
arch,  as  such  owner  or  occupier  shall  make  use  of ;  and  if  the  adjoining  build- 
ing then  erected,   or  afterwards  to  be  erected,  be  of  an  inferior  rate  or  class  of 
building,  then  the    owner  or  occupier  of  such  adjoining   building,   or  ground, 
shall  pay  a  sum  of  money,  equal  to  one  moiety  of  the  expence  of  building  a 
party-wall,  or   party-arch,  of  the   thickness  by  this    act   required  for    the  rate 
or  class  of  building  whereof  such  adjoining  building  shall  be,  and  of  the  height 
and  breadth  of  so  much  of  the    said  party-wall,  or  party-arch,  as   such  owner 
or   occupier  shall  make  use  of :  and  in  the  meantime,   and  until  such  moiety 
or  other  proportional  part  of  the  expence  of  building  such  party-wall,  or  party- 
arch,  be  so  paid,  the  sole  property  of  such  whole  party-wall,  or  party-arch,  and 
of  the  whole  ground  whereon  the  said   party-wall  shall  stand,  shall  be  vested 
entirely  in  the   person,  or  persons,  at     whose  expence  the  same  shall  be  built: 
and  such  moiety,  or  other  proportional  part  of  the   expence  of  building  such 
party-wall,  or  party-arch,  shall  be  so  paid  to  the  person    or  persons  at  whose 
expence  the  same  shall  be  built,  or  in  whom  the  property  thereof  shall  be  vest- 
ed, at  the  times  hereinafter  mentioned  ;  that  is  to  say,  in  respect  of  every  such 
party-wall   to  any   house,  or  building,  whereunto,  at  the  time   of  building  the 
same,  no  other  house  or  building  was  adjoining,  so  soon    as    such  party-wall 
shall  be  first  cut  into  or  made  use  of;   and  in  respect  of  every  such  party-wall, 
or  party-arch,  as  shall  be  built  against,  or  adjoining  to  any  other  house  or  build- 
ing, so  soon  as  such  party-wall    or  party-arch    shall  be    completely  built    and 
finished  ;  and  in  respect  of  such  last  mentioned  party-wall,  or  party-arch,  the 
owner  or  occupier  of  such  adjoining  house,  or    building,  shall,    together    with 
such   proportional  part  of  the   expence  of  building  such  party-wall,  or    party- 
arch,  also  pay  a  like  proportional  part  of  all   other  expences  which  shall  be  ne- 
cessary to  the  pulling  down  the  old  party-wall,  or  timber  or  wood  partition,  and 
the  whole    of  all  the  reasonable  expences  of  shoring  up  such  adjoining  house, 
or  building,  and  of  removing  any  goods,  furniture,  or  other  things,  and  of  pull- 
ing   down   any  wainscot  or  partition,   and  also  all  such  costs,  if  any,  as    may 
have  been  awarded  by  the  said  court  of  mayor  and  aldermen,  or  court  of  sessions 
as  aforesaid,  but  not  any  part  of  the  expence  of  pulling  down  and  clearing  3way 
any  *such  old  party-wall,  or  party-arch,  or  old  partition,  if  any  such  there  was. 
And  it  is  hereby  directed,  that  the  expence  of  building  such  party-wall,  or  par- 
ty-arch,   shall   be  estimated  after  the  rate  of  71.  15s.    by  the  rod,  for  the   new 
brick  work,  deducting  thereout  after  the  rate  of  1/.    8a-.  by  the   rod  for  the  ma- 

•405  M06 


405  On  Promises  to  Repay  Money  Paid-      [Part  II. 

terials,  (if  any)  of  so  much  of  the  old  wall,  or  arch,  as  did  belong  to  such, 
adjoining  building,  or  ground ;  and  also  after  the  rate  of  2d.  by  the  cubical  foot 
for  the  materials,  (if  any)  of  so  much  of  the  old  timber  partition  as  did  be- 
long to  such  adjoining  building,  or  ground  ;  and  that,  within  ten  days  after  such 
party-wall,  or  party-arch  shall  be  so  built,  or  so  soon  after  as  conveniently  may 
be,  such  first  builder,  or  builders,  shall  leave,  at  such  adjoining  house  or  building, 
a  true  account,  in  writing,  of  the  number  of  rods  in  such  party-wall,  or  party- 
arch,  for  which  the  owner  or  owners  of  such  adjoining  building,  or  ground,  shall 
be  liable  to  pay,  and  of  the  deduction  which  such  owner  or  owners  shall  be 
entitled  to  make  thereout,  on  account  of  such  materials,  and  also  an  account  of 
such  other  expences  and  costs  as  aforesaid  ;  whereupon  it  shall  be  lawful  for 
the  tenant  or  occupier  of  such  adjoining  building,  or  ground,  to  pay  one  moiety, 
or  such  proportional  part  as  aforesaid,  to  such  first  builder,  or  builders,  for  the 
same,  and  also  for  shoring  and  supporting  such  adjoining  building  as  aforesaid, 
and  for  all  such  other  expences  as  are  hereinbefore  directed  to  be  paid  by  the 
owner  or  owners  of  such  adjoining  building,  or  ground,  and  to  deduct  the  same 
out  of  the  rent  which  shall  become  due  from  him,  or  her,  to  such  owner  or  own- 
ers, under  whom  he  or  she  holds  the  same  respectively,  until  he  or  she  shall  be 
reimbursed  the  same :  and  in  case  the  same  be  not  paid  within  twenty-one 
days  next  after  demand  thereof,  then  the  same  shall  and  may  be  recovered, 
too-ether  with  full  costs  of  suit,  of  and  from  such  owner  or  owners,  by  action 
of  debt,  or  on  the  case,  in  any  of  his  Majesty's  courts  of  record,  at  Westmin- 
ster, wherein  no  essoin,  protection,  or  wager  of  law,  or  more  than  one  imparl- 
ance shall  be  allowed.  And  if  the  plaintiff,  or  plaintiffs,  in  any  such  action 
shall,  three  calendar  months,  at  the  least,  before  the  commencement  thereof, 
give  notice,  in  writing,  to  the  person  or  persons  against  whom  such  action  is 
intended,  to  be  brought,  of  his,  her,  or  their  intention  to  bring  the  same,  or 
leave  the  same  at  his,  her,  or  their  last  or  usual  place  of  abode,  and  shall,  in 
such  notice,  specify  the  sum  for  which  it  is  to  be  brought,  and  also  annex  to 
such  notice  a  bill  of  the  just  and  true  particulars  of  the  expences  and  charges 
with  which  the  intended  defendant  or  defendants,  is  or  are  to  be  charged,  then 
such  plaintiff  or  plaintiff's  if  he,  she,  or  they  recover  the  full  sum  specified  in 
such  notice,  shall  also  recover  and  be  entitled  to  double  costs  of  suit,  and  shall 
have  and  be  entitled  to  the  like  remedies  for  recovery  thereof  as  are  usually 
given  for  costs  in  other  cases  of  costs  at  law." 

And  by  section  42.  it  is  further  enacted,  by  the  authority  aforesaid,  *"  that 
every  party-wall  hereafter  to  be  built,  and  every  addition  which  shall  be  made 
thereto,  or  to  any  party -wall  which  is  already  built  or  begun,  shall  be  built 
agreeable  to  the  directions  herein  contained,  concerning  the  party-wall  of  the 
highest  rate  or  class  of  building  to  which  such  party-wall  shall  adjoin,  when 
such  additions  are  completed  ;  and  that  no  party- wall  now  built,  or  hereafter 
to  be  built,  shall,  after  the  same,  and  the  buildings  adjoining  theieto,  is  and 
are  completed,  be  raised,  unless  the  same,  when  raised,  be  of  the  full  thickness 
such  party-wall  is  of  in  the  story  next  under  the  roof  of  the  highest  adjoining 
building ;  nor  shall  any  party-wall  hereafter  be  raised,  unless  the  same  can  be 

*407 


Chap.  6.]      On  Promises  to  Repay  Money  Paid-  407 

done  with  safety  to  such  wall,  and  the  several  buildings  adjoining  thereto  :  but 
all  such  party-walls  as  will,  when  raised,  be  of  the  materials,  heights,  and  thick- 
nesses hereinbefore  required,  or  as  can  be  safely  raised,  may,  together  with  the 
shaft  or  shafts  of  the  chimneys  belonging  thereto,  be  raised  by  and  at  the  ex- 
pence  of  the  proprietor  or  occupier  of  any  building  to  which  the  same  belong, 
to  any  height,  he,  she,  or  they  shall  think  proper.  But  if  the  proprietor  or  oc- 
cupier of  any  building  adjoining  to  the  said  party-wall  and  chimney  shafts  shall 
make  use  of  any  part  of  such  party-wall  and  chimney-shafts,  other  than  the 
use  he  makes  of  the  chimney  flues  therein,  which  shall  be  so  raised,  then  such 
person  so  making  use  thereof,  for  the  part  so  used,  shall  be  chargeable  with  a 
proportionable  share  of  the  expence  of  raising  such  party-wall  and  chimney 
shafts ;  and,  in  computing  such  charge,  the  same  shall  be  rated  in  manner 
hereinbefore  mentioned,  and  the  proportion  such  person  shall  be  liable  to  pay 
shall  be  recovered  in  such  manner  as  is  hereinbefore  particularly  declared  con- 
cerning the  first  building  of  a  party- wall." 

Upon  this  act  of  parliament  the  owner  of  the  improved  rent  is  alone  liable 
to  contribute  a  moiety  of  the  expence  of  building  a  party-wall :  and  he  may 
be  sued  by  action  of  indebitatus  assumpsit  for  money  paid,  if  the  wall  is  im- 
mediately used  by  the  owner  of  the  adjoining  house  ;  but  where  no  building 
adjoins  at  the  time  of  erecting  the  party-wall,  the  declaration  should  not  be  in 
the  common  form,  namely  for  money  paid  generally,  but  it  should  state  all  the 
circumstances  specially,  (m)  As  doubts  are  frequently  raised  upon  the  ques- 
tion, who  is  to  be  deemed  the  owner  of  the  improved  rent,  and  liable  to  contri- 
bute 1  it  may  here  be  useful  to  present  the  reader  with  the  different  determina- 
tions to  be  met  with  in  the  reports  upon  this  point.  The  first  of  them  is 
Southall  v.  Lcadbetter,(n)  which  was  an  action  of  replevin;  and  the  defendant 
avowed  as  bailiff  of  J.  Winter,  for  30/.,  for  a  quarter's  rent  of  a  house  in  S/iugg 
Lane.  At  the  trial,  before  Lord  Kenyon,  Ch.  J.  the  jury  found  a  verdict  for 
the  plaintiff,  subject  to  the  opinion  of  the  Court  of  *King's  Bench,  on  the  fol- 
lowing case,  in  order  to  try  the  single  question  whether  Lygow,  the  assignee  of 
the  lease  of  the  house,  for  which  the  rent  was  claimed  to  be  due,  or  Winter,  was 
to  pay  the  moiety  of  the  expence  of  rebuilding  a  party-wall  between  that  house 
and  an  adjoining  one.  "  Winte  r  was  the  landlord  of  the  premises  in  question, 
and  was  seised  in  fee  thereof.  Lygow  was  occupier  of  part  of  the  premises* 
and  was  assignee  of  a  lease  thereof  granted  by  Winter  to  one  Foulslon,  deceas- 
ed, for  twenty-one  years,  dated  3d  July,  1786  ;  by  which  lease,  (reciting  an 
agreement,  in  writing,  dated  the  14th  October,  1784,  between  Winter  and 
Foulston,  that  the  latter  should  repair  the  messuage  and  premises  therein  men- 
tioned, according  to  the  particulars  ascertained  by  a  surveyor,  and  that  he 
would,  on  or  before  the  24th  June,  1785,  at  his  own  cost  and  charge,  put  the 
said  messuages,  &c.  into  good  and  sufficient  repair :  on  finishing  which,  Winter 


(m)  Vide  S  Term  Rep.  130.   8  Term  Rep.         (n)  3  Term.  Rep.  458. 
602. 


'408 


408        On  Promises  to  Repay  Money  Paid.         [Part  II. 

would  make  a  lease  thereof  to  Foulston,  to  commence  from  Midsummer -day 
then  last,  for  twenty-one  years,  under  the  rent  of  a  pepper  corn  for  the  first  half 
year  of  the  term,  and  under  the  clear  yearly  rent  of  120/.  for  the  remainder  of 
the  term  ;  and  also  reciting  that  Foulston,  in  pursuance  of  that  agreement,  had 
repaired,  &c.)  Winter  demised  the  premises  to  Foulston,  his  executors,  admin- 
istrators, and  assigns,  according  to  that  agreement.  The  lease  also  contained 
a  covenant  by  Foulston  to  pay,  "  from  time  to  time,  and  at  all  times  during  the 
term,  the  land-tax  and  all  other  taxes,  rates,  assessments,  and  impositions 
whatever,  already  laid,  assessed,  or  imposed  upon  the  said  premises,  or  on 
any  part  thereof,  or  upon  the  said  John  Winter,  his  heirs  and  assigns,  in  re- 
spect thereof,  by  authority  of  Parliament,  or  otherwise  howsoever."  The  case 
then  stated  that  Foulston  laid  out  and  expended,  in  the  repairs  of  the  premises, 
150/. ;  and  that,  though  the  consideration  stated  in  the  assignment  to  Lygow  ap- 
pears to  be  only  5s.  yet  that  the  sum  actually  paid  as  the  consideration  for  it  was 
160/.  The  old  wall  was  condemned  in  the  year  1788  ;  and  the  present  party- 
wall  was  built  according  to  the  terms  of  the  act  of  Parliament.  Lygow  has 
paid  for  a  moiety  of  the  party-wall,  the  bills  for  which  exceed  the  quarter's  rent 
for  which  the  distress  was  made  :  those  bills  were  tendered  to  Winter  before  the 
distress,  but  he  refused  to  allow  them.'  The  premises  in  question  were,  previ- 
ous to  the  commencement  of  the  present  lease,  let  by  Winter,  at  the  rent  110/. 
per  annum,  out  of  which  he  allowed  to  the  tenant  the  land-tax." 

The  Court  determined,  that  Winter  was  the  person  liable  under  the  act  to 
pay  the  moiety  of  the  expence  of  rebuilding  the  party-wall.  And  Lord  Ken- 
yon, Ch.  J.  said,  "  The  improved  rent  mentioned  in  this  Act  of  Parliament 
stands  contradistinguished  from  some  other  rent ;  but  here  no  other  rent  was 
reserved  but  that  at  the  granting  of  the  lease.  But  it  is  said  that  the 
lessee  received  from  his  assignee  a  sum  in  gross,  as  the  consideration  for  the 
purchase,  which  is  equivalent  to  an  *improved  rent.  If,  indeed,  a  large  sum 
were  paid  for  the  purchase  of  a  lease,  though  no  improved  rent  were  reserved 
to  the  original  lessee,  I  think  he  would  be  liable  to  pay  this  expence  within  the 
Act  ot  Parliament.  But  that  is  not  the  present  case  :  for  when  Winter  grant- 
ed this  lease  he  reserved  the  best  rent  which  could  be  procured  for  it  at  the 
time,  since  this  rent  exceeds  the  rent  formerly  reserved  by  10/.  per  annum,  and 
the  whole  of  the  land-tax  ;  and  the  case  ought  not  to  be  varied  by  the  circum- 
stance of  the  estate's  gradually  increasing  in  a  small  degree.  Where  the  par- 
ties contract  for  a  lease  at  rack  rent,  the  landlord  is  the  person  who  ought  to 
bear  the  expence  of  the  party-wall.  Then  it  was  contended  that  the  full  rent 
was  not  reserved  originally,  because  it  was  stipulated  that  the  tenant  should 
lay  out  a  considerable  sum  of  money  in  improving  the  estate  :  but  it  must  also 
be  remembered,  that  in  consideration  of  that,  the  lessee  was  to  pay  no  rent  for 
the  first  half  year ;  which  might  have  been  considered  at  the  time  as  commen- 
surate with  the  sum  to  be  laid  out  in  the  repairs.  Neither  is  the  lessee  con- 
cluded by  the  covenant  to  pay  the  taxes,  assessments,  impositions,  &c.  for  that 
only   extends  to  the  land-tax,  and  all  other  taxes  ejusdem  generis :  but  this  is 

not  a  tax." 
#409 


Chap.  6. J     On  Promises-  to  Repay  Money  Paid.  409 

The  owner  of  the   improved  rent,  and  not  of  the   ground   rent,  is   the  party 
liable  by  the  Act  of  Parliament  :  thus,  in  the  case  of  Peck  v.  Wood,(o)  which 
was  an  action   of  assumpsit  to  recover  42/.    for  half  of  the  expence  of  a  party- 
wall,  between  the   plaintiff's  and  defendant's   house,  built  by  the  former,  under 
the  stat.  14  Geo.  III.  c.  78.    s.  41.     On  the  trial,  a  special  case  was  reserved 
for  the  opinion  of  the  Court  of  King's  Bench,    which  stated,  in  substance,   as 
follows  :   "On  the    18th  of  November,    1788,  the  defendant   entered  into   an 
agreement  with  W.  Pateman,  for  a  building  lease  of  a  piece  of  ground  adjoining 
to  the  plaintiff's  house   in  Princes-street,  West?ninstcr,  whereon  was  standing 
a  messuage  and   other  buildings,  for  sixty-one  years,   to  commence  from  the 
29th  of  September  then  last,  at  the  yearly  rent  of  8/.   free  from   all  deductions 
whatsoever,  whether  parliamentary  or  parochial,   then  or  thereafter  to  be  im- 
posed or  assessed,  either  on  the  landlord  or  tenant;  and  it  was  agreed  that  the 
defendant  should  immediately   proceed  to  pull   down  the   premises,  and   erect 
thereon  at  least  one  good  substantial  brick  dwelling-house,  with  necessary  con- 
venient out-houses  and  offices,  &c.  and  to  lay  out  and  expend  in  the  erection  of 
such  new  building  300/.  at  least.     Pursuant   to  this  agreement,  a  lease  of  the 
premises   was   granted  and   executed,  in  January,    1789,   by  Pateman  to  the 
defendant.     The  plaintiff,   previous  to  the  defendant's  entering  into  the  agree- 
ment with  Pateman  for  the  lease,  had  pulled  down  the  old   wall,   which  was 
standing  between  his  (the  plaintiff's)  house,  and  the  house  and  premises  which 
the  defendant  took  upon    lease  as   aforesaid.     On  the  29th  September,  *1788, 
*the  party-wall  was  begun  to   be  built;  and  on  the   l?th  day  of  January  fol- 
lowing it  was  finished.     In    June,    1790,  the  defendant  let  the  house   held  of 
Pateman  to  J.  Beach,  at  the  yearly  rent  of  31/.  \Qs.  the  land-tax  and  sewer's 
tax  deducted.     It  was  absolutely  necessary  that  the  old  wall  should  be  pulled 
down.     The  defendant  enjoys   the  improved  rent ;  and  Pateman   is  still  the 
ground  landlord.     The  plaintiff  did  not  give  three  months'  notice  in  writing  to 
Pateman,  the  then  owner   and  ground   landlord  of  the  house   and  premises, 
which  were  afterwards  leased   to  the  defendant,  prior  to  his  pulling  down  the 
party-wall  ;  but  he  applied  to  Pateman   for  that  purpose,   who  agreed  that  it 
should  be  pulled  down,  if  Hawkins,  the  then  tenant,  would  consent ;  and  Haw- 
kins did  consent.     The  new  party-wall  is  built  agreeably  to  the  directions  of 
the  statute  14  Geo.  III.  c.  78.       The  defendant  has  the  benefit  of  the  party- 
wall,  and  that  in  a  greater  degree  than   the   plaintiff;  his  house  extending  far- 
ther back  than  the  plaintiff's.     The  Court  were  of  opinion  that  the  defendant, 
being  owner  of  the  improved  rent,  was  liable  to  pay  the  expences  of  the  party- 
wall  ;  and  that  the  defendant  was  not  entitled  to  the  three  months'  notice  re- 
quired by  section  38.  of  the  act :  and  Bailer,  J.  said,  "  The  three  months  re- 
quired by  section  38.  is  only  necessary  in  those  instances  where  the  party  is 
either  ignorant  of,  or  adverse  to,  the  building  of  the  wall :  but  this  was  begun 
with  Pateman 's  consent,  and  before  its  completion  the  possession  of  the  house 


(o)  5  Term  Rep.  130. 

50  *4io 


410  On  Promises  to  Repay  Money  Paid.     [Part  II. 

was  changed.  The  defendant,  therefore,  was  not  entitled  to  notice,  he  stand- 
ing in  Paleman's  place.  And  with  regard  to  the  principal  question,  it  would 
be  unjust  that  Patcman,  who  receives  a  ground  rent  of  8/.  only,  and  who  de- 
rives no  advantage  from  the  party-wall,  should  pay  the  expence  of  it ;  and  that 
the  defendant,  who  does  enjoy  it,  and  who  is  in  the  receipt  of  an  improved  rent 
of  31/.  should  not  contribute  any  part  of  this  expence." 

But  the  accounts  must  be  delivered  and  demand  made  within  21  days,  before 
any  action  is  brought  as  directed  by  the  41st  section  of  the  act.  (p)  So,  not- 
withstanding the  lessee  or  assignee  has  improved  the  house  demised,  the  lessor 
of  the  premises  at  rack  rent  is  the  person  to  be  deemed  the  owner  of  the  im- 
proved rent,  and  liable  to  contribute,  and  not  the  lessee,  unless  the  latter  under- 
lets the  house  at  an  improved  rent,  (q) 

But  where  the  lessee  covenanted  to  pay  a  reasonable  share  and  proportion 
of  the  expences  for  repairing  party-walls,  &c,  it  has  been  determined,  that  he, 
and  not  the  lessor  is  liable.  Thus,  in  the  case  of  Barrett  v.  the  Duke  of 
Bedford(r)  which  was  also  an  action  of  assumpsit  *to  recover  1951.  paid  by 
the  plaintiff  for  the  proportionate  part  of  the  expences  of  a  party-wall,  built  by 
the  proprietor  of  the  adjoining  house,  under  the  stat.  14  Geo.  III.  c.  78.  s.  41. 
A  verdict  was  taken  for  the  plaintiff  for  that  sum,  subject  to  the  opinion  of  the 
Court  of  King's  Bench  on  the  following  case :  In  the  year  1786  the  plaintiff, 
by  assignment,  became  possessed  of  a  lease,  granted  in  the  year  1762,  by  the 
defendant's  grandfather,  of  certain  premises  on  the  north  side  of  the  Great  Pi~ 
azza,  Covent  Garden,  for  a  term  of  thirty  years,  of  which  about  six  years 
were  then  unexpired,  under  a  yearly  rent  of  60/.  On  the  6th  of  October,  1788, 
a  new  lease  was  granted  by  the  defendant  to  the  plaintiff,  for  a  term  of  thirty- 
one  years,  to  commence  at  the  expiration  of  the  said  lease,  or  Lady-day,  1792, 
at  60/.  per  annum.  The  last  mentioned  lease  is  stated  to  be  granted  in  consid- 
eration of  the  great  expence  and  charges  which  the  plaintiff  had  been  at  in  re- 
pairing the  premises,  and  also  in  consideration  of  the  following,  among  other 
covenants  :  "  And  likewise  that  the  said  Michael  Barrett,  his  executors,  admin- 
istrators, and  assigns,  shall  and  will,  from  time  to  time,  and  at  all  times  during 
the  continuance  of  the  said  term  hereby  granted,  bear,  pay,  and  discharge 
all  taxes,  rates,  duties,  assessments,  and  impositions  of  what  nature  or  kind  so- 
ever, and  whether  parliamentary  or  parochial,  imposed  or  charged,  or  which,  at 
any  time  during  the  term  hereby  granted,  shall  be  imposed  or  charged  on  the 
hereby  demised  premises,  or  any  part  thereof,  or  upon  the  landlord  for  the 
time  being  in  respect  thereof,  or  of  the  said  rent  reserved  for  the  same  ;  it  be- 
ing the  true  istent  and  meaning  of  these  presents,  and  of  the  parties  hereto, 
that  the  said  Duke  of  Bedford,  his  heirs  and  assigns,  shall  have  and  receive  the 
said  yearly  rent  or  sum  of  60/.  hereby  reserved  in  net  money,  without  any  dedue- 


0>)  Vide  Philip  v.  Donati,  2  Taunt.  62.  and  see  Sangster  v.  Birkhead,  1  Bos.  &  Pul. 

(q)   Beardmore  v.  Fox,  8    Term    Rep.  214.  303. 

Lambev.  Henums,  2    Barn,   and    Aid.   467.,  (r)    S  Term  Rep.  602. 

*411 


Chap.  6.]     On  Promises  to  Repay  Money  Paid.  411 

tion,  defalcation,  or  allowance  out  of  the  same,  on  any  account  whatsoever  ;  and 
that  he,  the  said  Michael  Barrctt,his  executors,  administrators,  and  assigns/shall, 
and  will,  during  the  term  hereby  granted,  as  often  as  need  shall  require,  bear,  pay, 
and  allow  a  reasonable  share  and  proportion  of,  or  for  and  towards  supporting,  re- 
pairing, amending,  and  cleansing  all  party-walls,  party -gutters,  common  sewers, 
public  sewers,  and  drains  belonging,  or  which,  at  any  time  during  the  said   term 
hereby  granted  shall  belong  to  the  said  hereby  demised  premises,  or  any  part  there- 
of." These  covenants  were  verbatim  as  in  the  old  lease,  with  the  exception  of  such 
parts  as  relate  to  the  payment  of  the  land-tax  by  the  tenant,  which  by   the    for- 
mer lease  was  paid  by  the  landlord,  and  the  amount  of  which  was    22/.    10s. 
per  annum.     The  demised  premises  consist  of  two  shops  on    the  ground  floor, 
and  a  range  of  apartments  above  stairs.     Before  the  pulling  down  and  building 
of  the  party-wall  hereinafter  mentioned,  one  of   the  shops  was   under-let   by 
the  plaintiff  by  lease  for  seven,  fourteen,    or  twenty-one  years,  at  the  yearly 
rent  of  60/.,    the  plaintiff  covenanting  *to  pay  all  the    taxes,  and   for  water. 
And  the  other  of  the  shops  was    under-let  by   the  plaintiff  by  lease  to  one  /. 
Alditch  for  twenty-one  years,  at  the  rent  of  26/.  5s.,  the    plaintiff  covenanting 
to  pay  all  the  taxes.     The  residue  of  the  demised  apartments  was  kept  by  the 
plaintiff  for  several  years  in  his  own  hands,   but  at  the  time    when  the  party- 
wall  was  built,  he  had  let  them  furnished  to  one  Searle  for  twenty-one  years,   at 
the  yearly  rent  of  210/.,  the  plaintiff  covenanting  to  pay  all  the  taxes.     At  the 
time  the  party-wall  was  built,  the  taxes,  paid  by  the  plaintiff,  amounted   to  72/. 
3*.  a  year.     The  court  determined  that  the   tenant,  (not   the  landlord,)   was 
bound  to  pay  the  moiety  of  the  expence  of  the  party-wall.     And  Lord  Kenyon, 
Ch.  J.  said,  "  If  there  were  no    covenants  in  the  lease  applicable  to  this   sub- 
ject, there  would  be  great  weight  in  the  plaintiff's  argument:  but  it  is  not  neces- 
sary to  consider  which  of  these  parties  would  have  been  liable  under   the    act 
of  parliament ;  modus  et  conventio  vincunt  legem.     I    think,  it    was   the    inten- 
tion of  the  parties  to  this  lease,  that  the   expence    of  the  party-wall  should   be 
borne  by  the  tenant.     Had  there  been  nothing  more  in  the   lease  than  the  ten- 
ant's covenant  to  pay  '  taxes,  rates,  duties,  assessments  and  impositions,    whe- 
ther parliamentary  or  parochial,'  I  should  have  entertained  the  same  opinion  in 
this  case  that  I  expressed  in  one  of  the  cases  cited,  that  those   words   did   not 
extend  to  building  a  party-wall :  but  the  latter  part  of  that  covenant    by  which 
the  tenant  covenanted  that  the  landlord   should    receive    the    •  yearly    sum  of 
60/.  in  net  money,   without  any  deduction  or  allowance    out  of  the  same,'  and 
the    covenant  respecting    the    '  repairing    of   all  party-walls,'  &c.    satisfy  me 
that  the  parties  intended  that  this  expence  should  fall  on  the  tenant." 

So,  in  the  case  of  Stewart  v.  Smithes)  which  was  an  action  brought  to  re- 
cover 28/.  the  moiety  of  the  expence  of  erecting  a  party  wall  between  the 
plaintiff  Vhouse  and  a  house  occupied  by  the  defendant.  And  it  appeared 
that  the  old  party-wall  being  out  of  repair,  it  became  necessary  to  rebuild    it, 


(s)  Holt  N.    P.  CJfts.  321.     2  Mar.   435.    '/Taunt,   158.  S.C, 

*412 


412  On  Promises  to  Repay  Money  Paid.      [Part  II. 

that  the  plaintiff  applied  to  the  defendant,  who  enquired  what  the  expence 
would  be,  and  upon  being  told  his  proportion,  said,  "  Very  well ;  I  shall  ex- 
pect to  pay  what  is  right  and  fair."  About  six  weeks  after  the  wall  was  rebuilt, 
the  plaintiff  called  on  the  defendant  for  10/.  in  part  payment,  the  defendant 
said,  it  was  not  convenient  for  him  to  pay.  It  also  appeared  that  the  defendant 
paid  rent  to  two  persons,  viz.  32/.  to  one,  and  18/.  to  another:  the  wall  was 
rebuilt  in  September,  1815.  Since  the  action  was  brought,  the  defendant  had 
offered  his  lease  for  sale,  for  300/.  It  was  admitted  that  no  notice  of  accounts, 
as  directed  by  the  act  (14  Geo.  3.  c.  78.  s.  41.)  had  been  delivered  to  the 
defendant,  or  left  at  his  house.  For  the  defendant  two  objections 
were  taken,  first,  that  the  41st  section  of  the  building  act,  throws  the  burthen 
of  rebuilding  *and  repairing  party  walls  upon  the  owners  of  the  improved  rent. 
There  was  no  evidence  that  defendant  was  such  owner.  The  fact  of  his  hav- 
ing offered  his  lease  for  sale  long  after  the  wall  was  rebuilt,  did  not  prove  his 
original  liability.  Had  he  even  sold  his  lease  for  a  premium,  it  would  not 
make  him  liable  as  owner  of  an  improved  rent,  for  it  was  in  evidence  that  he 
paid  rent  to  two  distinct  persons,  one  or  other  of  which  rents,  in  the  absence 
of  evidence,  might  be  presumed  to  be  an  improved  rent.  2d.  His  promise  to 
pay  must  be  construed  with  reference  to  his  legal  liability.  If  the  obligation  to 
repair,  be  in  another  person,  such  promise  not  being  in  writing  was  void  by  the 
statute  of  frauds.  But  the  effect  of  the  word  is  not  a  general  promise, 
nor  does  it  dispense  with  the  provisions  of  the  building  act.  "  I  shall  pay 
what  is  right  and  fair;"  this  is  no  dispensation  of  the  means  prescribed  by  the 
statute  for  ascertaining  what  is  "  right  and  fair."  But  Gibbs  Ch.  J.  said,  "  the 
act  requires  certain  forms  which  must  be  complied  with  against  an  adverse  oc- 
cupier. But  neither  the  act  of  parliament,  nor  the  forms  are  very  clear  and 
precise.  I  agree  that  the  owner  of  the  improved  rent  is  alone  liable.  But 
there  are  two  questions  in  this  case:  1st,  Have  not  the  parties  come  to  an  un- 
derstanding to  dispense  with  the  formalities  of  the  building  act,  which  they  may 
do ;  2d,  Has  not  the  defendant  made  himself  liable  by  his  promise  ?  He  de- 
sired to  know  what  the  expence  would  be,  and  agreed  to  pay  his  moiety.  He 
assumes  the  responsibility  upon  himself,  and  as  occupier  there  is  sufficient  con- 
sideration for  him  to  make  such  agreement,  supposing  him  not  to  be  the  owner 
of  the  improved  rent,  though  there  is  a  strong  presumption  that  he  is  such  own- 
er. The  construction  of  the  evidence  will  be  for  the  jury,  but  I  think  the 
plaintiff  entitled  to  recover."  And  the  jury  accordingly  found  a  verdict  for 
the  plaintiff. 

Upon  the  38th  section  of  the  building  act,  respecting  a  contribution  towards 
shoring  up  a  house,  &c.  it  was  determined,  in  the  case  of  Robinson  v.  Lewis,  (t) 
that  where  notce  of  pulling  down  and  re-building  a  party-wall,  was  given  under 
the  building  act  14  Geo.  3.  c.  78.  and  the  tenant  of  the  adjoining  house,  who 
was  under  covenant  to  repair,  finding  it  necessary  in  consequence,  to  shore  up 
his  house,  and  to  pull  down  and  replace  the  wainscot  and  partitions  of  it,  instead 

(t)  2  Esn.  Rep.  227. 
*413 


Chap.  6.]     On  Promises  to  Repay  Money  Paid.         413 

of  leaving  such   expences    to    be    incurred,    and    paid   by  the  owner    of  the 
house,   giving    notice,  in    the   manner   prescribed  by   the  act,  and    afterwards 
paying  the  same    to  him  upon  demand,    employing    workmen  of  his   own   to 
do   those  necessary  works,    and    paid   them    for  the  same,    that  he   could   not 
recover  over  against  his  landlord   such  expences  incurred  by  his  own  orders 
and  paid  for  by  him  in   the  first  instance  :  for  all  the   powers   and  authorities 
given    by   the    act  in    respect   to   any    works  to   be    done,    are  *given  to   the 
owner  of  the  house  intended  to  be  pulled  down  and  rebuilt,  and  the  landlord  of 
the  adjoining  house  being  only  liable  by  the  act  to  reimburse  his  tenant,  money 
paid  by  him  to  the  other  owner  for  such  works  as  are  authorised  to  be  done  by 
such  other  owner  in  respect  of  such  adjoining  house.     And  Lord  Ellenborou<rJi, 
in  delivering  the  judgment  of  the  Court  upon  this   case,   said,  "  The  money 
sought    to  be  recovered  in  this  action  is  the  expence  of  shoring  up  the  plaintiffs 
house,  which   work  was  done  by  a  workman    employed  by  the  plaintiff  for  that 
purpose,  and   the  money  paid  by  the  plaintiff  to   such   workman.     This   is  an 
expence   which   properly  belonged  to  the  plaintiff,  except  so  far  as  the  statute 
14  Geo.  3.  c.  78.  has  shifted  the  burthen  ;  because  the  plaintiff  was  tenant  un- 
der covenant  by  the  terms  of  his  lease  to  repair,  uphold,  and  support  the  demis- 
ed premises  ;  and  the  defendant,  the  landlord,  is  no  further  or  otherwise  liable 
to   this    expence    than  as  the  act  of  parliament  has    made  him  so,   the   rule 
and  manner   of  his   liability  must  therefore  be  found  in  the  act.     Now  the  act 
empowers  the  person  at  whose   expence  a  party-wall  is  rebuilt,  in  other  words, 
the  owner   of  the  house  adjoined   to  his,  pursuing  the  directions,    and   giving 
the  notices  pointed    out  therein,  to  shore  up  the  house,  and  build    the  party-wall 
and  after  the  expence  has  been  ascertained  by  surveyors  in  the  manner  pointed 
out  by  the  act,  to  leave  a  true  account  in  writing  at  the  adjoining  house,  where- 
upon  the  act  directs,   that  it  shall  be   lawful  for  the  tenant    or    occupier  of  the 
adjoining  building    or  ground    to    pay  one    third,    or  such    proportional  part  of 
building  the  wall   as  aforesaid,  and  also  for  shoring  and  supporting  such  adjoin- 
ing building,  and  such  other  expences  as  are  directed  to  be  paid  by  the    owner, 
and  to  deduct   the  same  out    of  the  rent  which  shall  become  due    from  him  to 
such  owner  under  whom    he  holds  the  same,  until  he  shall  be  reimbursed,  and 
in  case  the   same  be   not  paid  within  21   days  next  after  demand    thereof,  then 
that  the  same  may  be  recovered  with  full  costs  of  suit  of  such  owner,  by  action 
of  debt,  or  on  the    case.     All  the  powers   and  authorities  given  by  this  act,  in 
respect  to  any  works  to  be  done,  are  given  to  the  owner  of  the  house  intended 
to  be  pulled  down  and   rebuilt,  and  the   money  is  to  be  paid   by  him ;  and  it  is 
only  in  the  event  of  the  money  for  doing   such  works  having  been  paid  to  him 
by  the    tenant,    that  such   tenant    can  reimburse  himself  as  against,    his   land- 
lord.    This  being,  therefore,  an  expence  incurred  by  the  tenant  by  his  own  act 
and  not  in  pursuance  of  the  provisions  of  the  statute,  cannot  be  recovered  against 
the  defendant  his  landlord."(132) 


(132)  The  doctrine  of  contribution  is  founded  on  the  just  and  equitable  principle,  that 
where  the  interest  in  the  subject  matter,  is  common,  the  burden  ought  also  to  be  common  ; 

*414 


415  On  Promises  to  Repay  Money  Paid    [Part  II. 

♦8.  OF    A     COMPULSORY   PAYMENT    OF    THE   DEBT  &c.  OF  ANOTHER, 
MADE  EITHER  BY  AN  ATTORNEY,  SHERIFF,  GAOLER  OR  OTHERS. 

Where  an  annuity  has  been  vacated  by  reason  of  a  defect  in  the  m  emorial, 
and  the  attorney  who  prepared  the  conveyances  is  sued  by  the  grantee  for  neg- 
ligence, and  a  verdict  recovered  against  him  to  the  amount  of  the  considera- 
tion-money paid  for  the  annuity,  which  he  pays,  he  cannot  recover  it  over 
against  the  grantor.  Thus,  in  the  case  of  Burdon  v.  Wcbb,(u)  which  was  an 
action  of  assumpsit  for  money  paid.  The  facts  were  these :  Webb  had  grant- 
ed an  annuity  to  A.  B.,  and  Burdon  was  the  attorney  for  the  grantee.  A  me- 
morial of  this  annuity  not  having  been  properly  registered,  on  application  to 
the  court  it  had  been  set  aside,  and  the  grantee  being  at  that  time  dead,  his  ex- 
ecutors brought  an  action  against  Webb  for  money  had  and  received,  being  the 
consideration  paid  to  him  for  the  annuity,  and  had  a  verdict  against  him  ;  Webb 
being  then  in  distressed  circumstances,  and  not  paying  the  money  recovered 
against  him,  the  executors  brought  an  action  against  Burdon  for  negligence  : 
before  the  trial,  he  gave  a  cognovit  for  the  amount  of  the  consideration  money 
paid  for  the  annuity,  and  afterwards  paid  it ;  and  this  action  was  brought 
against  Webb  for  the  money  so  paid.  But  Lord  Kenyoii,  Ch.  J.  said,  "  It  can- 
not be  supported,  that  a  party  by  his  own  act,  and  without  the  consent  of  ano- 
ther, by  paying  money  for  him,  can  maintain  an  action  on  it ;  if  it  was  so,  it 
would  be  of  the  worst  consequences,  as  by  that  means  a  man  might  get  his 
greatest  enemy  for  his  creditor :  if  a  surety  pays  money  for  his  principal,  as 
such  was  paid  by  reason  of  the  security,  he  may  maintain  an  action  for  it 
against  his  principal.  I  have  often  ruled  that  point ;  but  in  the  present  instance 
the  case  is  very  different,  the  money  has  been  paid  by  the  attorney  for  his  own 
negligence,  and  this  being  in  consequence  of  an  action  brought  against  himself, 
it  will  not  entitle  him  to  maintain  an  action  against  the  defendant."  The  plain- 
tiff must  be  nonsuited. 

So,  where  a  sheriff  or  gaoler  voluntarily  suffers  a  prisoner  to  escape,  and  in 
consequence  thereof  is  obliged  to  pay  the  amount  of  the  debt  for  which  the 
prisoner  was  committed  to  prison,  he  cannot  maintain  an  action  against  such 
prisoner  for  the  money  so  paid.     Thus,  in  the  case  of  Eyles  v.   Faikney,(v) 

(u)  2  Esp.  Rep.  527.  Cas.  N.  P.  144.  n.  a.  See  also  Pitcher  v.  Bailey, 

(c)  K.  B.  East  Term.  32  Geo.  III.  Peake's     8  East  Rep.  171.  S.  P. 

and  this  principle  of  equal  justice  has  a  more  extensive  and  effectual  operation  in  a  Court  of 
equity,  than  in  a  Court  of  law  :  Thus,  where  there  was  an  old  party  wall  between  two 
owners  of  houses,  in  the  City  of  Neic-York,  and  one  of  them  being  desirous  of  building  a 
new  house  on  his  lot,  pulled  down  the  old  house,  and  with  it,  the  party  wall,  which  was  ru- 
inous, and  rebuilt  it  with  his  new  hoHse  ;  the  owner  of  the  adjoining  house  and  lot,  is 
bound  to  a  rateable  contribution  towards  the  expence  of  the  new  partition  wall.  Campbell 
v.  Mesier,  4  J.  Ch.  R.  334.  The  adjoining  proprietor,  however,  is  not  bound  to  contribute 
to  the  expence  of  building  the  new  wall  higher  than  the  old  one ;  nor,  if  materials  more 
costly,  or  of  a  different  nature  are  used,  is  he  bound  to  pay  any  part  of  the  extra  expence. 
Id.  And  the  amount  of  the  contribution  being  a  lien  on  the  wall,  from  the  time  the  payment 
of  it  was  demanded  and  refused,  the  party  is  entitled  to  the  allowance  of  interest.  S.  C.  6  J. 
Ch.  R.21. 
*415 


Chap.  6.]     On  Promises  to  Repay  Money  Paid.        415 

where  it  appeared,  that  the  defendant  being  a  prisoner  in  the  custody  of  the  plain- 
tiff (who  was  a  warden  of  the  Fleet  Prison)  on  mesne   process,  at  the  suit   of 
one  Holland,  a  written    authority  came  from   Holland  to  the  plaintiff  to   dis- 
charge the  defendant  out   of  his  custody,  but  Molloy,  the    plaintiff's   deputy, 
having  doubts  as  to  the  *authenticity  of  the  discharge,  applied  to  Holland,  to 
know  whether  it  was  his  hand-writing.     Holland  confessed  he  had  signed  the 
paper,  but  said,  that  he  had  been  imposed  on  by  the   defendant,   and  therefore 
countermanded  the  authority.     The  defendant  insisted  that  the  authority  to  dis- 
charge him  was  irrevocable,  and  threatened  MoUoy  with  an  action  if  he  detain- 
ed him  ;  and  Molloy  thinking  that  Holland  could  not  revoke   his  order,  dis- 
charged the  defendant  out  of  his  custody.     Holland  afterwards  brought  an  ac- 
tion in  the  Common  Pleas  against  the  plaintiff  for  an  escape,  and  recovered  a 
verdict  and  300/.  damages,  to  recover  which  money  the  present  action   was 
brought,  as  for  money  paid,  laid  out  and  expended.     The  cause  was  tried  be- 
fore Lord  Kenyon,  Ch.  J.  at   Westminster ;  but  his  lordship  being  of  opinion, 
that  the  plaintiff  had  been  guilty  of  a  breach  of  his  duty  in  permitting  this  defen- 
dant to  escape,  ruled  that  he  ought  not  to  be  permitted  to  come  as  a  plaintiff  in- 
to a  court  of  justice  ;  and  therefore  ordered  a  nonsuit.     His  lordship's  opinion 
was  afterwards  confirmed  by   the  Court  of  King's   Bench,  upon  a  rule  to  show 
cause  why  the  nonsuit  should  not  be  set  aside. 

But  a  sheriff's  officer,  who  discharges  a  defendant  on  payment  of  the  sum 
sworn  to,  and  is  afterwards  obliged  to  pay  the  residue  of  the  debt  in  order  to 
prevent  an  attachment  against  the  sheriff,  may  recover  it  from  the  defendant  as 
money  paid  to  his  use.  For  Per  Buller  Just,  (w)  "  This  is  not  a  voluntary 
payment,  the  officer  would  have  been  obliged  to  pay  the  whole  sum  due  by 
law  ;  for  though  bail  above  cannot  be  charged  with  more  than  the  sum  sworn 
to,  yet  it  is  not  so  with  the  sheriff  or  the  defendant,  against  whom  the  officer 
may  recover  the  whole  of  his  debt.  To  bring  this  within  the  case  of  Eyles  and 
Faikney,  the  defendant  should  show  some  improper  conduct  in  the  officer  ;  but 
if  I  were  to  determine  that  he  had  done  wrong  in  this  case,  I  must  say,  that  a 
sheriff's  officer  could  not  in  any  case  receive  the  debt  and  costs,  and  discharge 
the  defendant,  which  might  be  attended  with  very  mischievous  consequences  to 

the  defendant." 

So,  in  the  case  of  Wilson  v.  Milner,  (cc)  where  a  levy  was  made  on  the  goods 

of  a  trader  after  he  had  committed  an  act  of  bankruptcy,  and  the  money  levied 
was  paid  over  to  the  party  ;  an  action  of  trover  was  afterwards  brought  by  the 
assignees  against  him,  the  sheriff,  and  the  bailiff,  in  which  damages  were  recov- 
ered ;  and  these  together  with  the  costs,  were  paid  by  the  bailiff.  It  was  hold- 
en  by  Lord  Ellenborough  Ch.  J.,  "  That  there  is  no  implied  promise  on  the  part 
of  the  plaintiff  in  the  original  suit  to  indemnify  the  bailiff,  or  to  contribute  to  the 
damages  and  costs  in  the  action  of  trover;  but  that  the  bailiff  might  maintain 
money  had  and  received  to  recover  back  the  levy  money  paid  over. 


(to)  Peake's  Cas.  N.  P.  143.  Cordron  v.        (x)  2  Campb.  452. 
Lord  Masserene. 


'416 


417      Of  Money  Due  upon  an  Account  Stated.       [Part  II. 


*CHAPTEU  VII. 


ON  PROMISES  TO  PAY  MONEY  DUE  UPON  AN  ACCOUNT  STATED  ;  AND 
IN  WHAT  CASES  AN  ACTION  OF  INDEBITATUS  ASSUMPSIT  WILL  LIE 
THEREON. 

If  two  persons,  having  dealings  together,  balance  their  accounts,  the  law  im- 
plies that  he  against  whom  the  balance  appears,  has  engaged  to  pay  it  to  the 
other,  though  there  be  not  any  actual  promise  :  and  upon  such  implied  promise 
an  action  of  indebitatus  assumpsit  will  lie.  And  actions  of  this  kind  are  fre- 
quently brought ;  and  in  which  the  declaration  states  generally,  that  the  plain- 
tiff and  defendant  had  settled  their  accounts  together,  insimul  computassent, 
(which  gives  name  to  this  species  of  assumpsit,)  and  that  the  defendant  engag- 
ed to  pay  the  plaintiff  the  balance,  but  has  since  neglected  to  do  it.  (a) 
Thus,  in  the  case  of  Egles  v.  Vale,(b)  in  error,  which  was  an  action  of  as- 
sumpsit, "  for  that  the  plaintiff  and  defendant  accounted  together  for  monies 
received  by  the  defendant,  who  was  found  in  arrear  10/.,  and  in  considera- 
tion thereof  promised  to  pay  it  the  19th  March  following,"  &c.  It  was  as- 
signed for  error,  that  there  was  no  consideration ;  for  the  being  found  in  arrear 
is  not  any  cause  to  make  a  special  promise,  nor  is  any  thing  done  on  the  plain- 
tiff's part  whereon  this  promise  should  be  grounded,  viz.,  forbearing  the  suit, 
&c.  Sed  non  allocatur;  for  the  debt  itself,  without  other  special  cause,  is 
sufficient  to  ground  the  action. 

So,  where  partners  balance  their  joint  accounts  inter  se,  the  partner  in  whose 
favour  the  balance  is  struck  may  maintain  an  action  of  assumpsit  against  his  co- 
partner for  the  amount  of  such  balance,  declaring  generally  upon  an  account 
stated,  (c)  (133)     So,  where  A.  and  B.  having  been  partners  in   a  particular 


(a)  Vide  3  Bl.  Com.  164.  Mod.  44.  Dan.   Abr.  52. 

(6)  Cro.  Jac.  69.  Yelv.  70.  S.  C.  See  (c)  2  Term  Rep.  479.  483.  n.  et  vide  post, 
also  1  Rol.  Abr.  fo.  7.  pi.  1.  fo.  9.  pi.  11.2     tit.  Partners. 

(133)  See  Beach  v.  Hotchkiss,  2Conn.  Rep.  425.  But  no  action  at  law  can  be  sustained 
for  the  settlement  of  a  partnership  account,  where  the  number  of  partners  exceeds  two  ;  the 
only  remedy  in  such  case,  being  by  bill  in  chancery.  Id.  On  the  question,  what  may  be 
considered  a  sufficient  liquidation  of  a  partnership  account,  See  S.  C.  2  Conn.  Rep.  697. 
In  relation  to  this  subject,  see  further,  Wetmore  v.  Baker,  9  J.  R.  307.  Ozeas  v.  Johnson,  1 
Binn.  190.  S.  C.  4  Dall.  434.  Casey  v.  Brush,  2  Caines,  293.  Mven  v.  Spickerman,  12 
J.  R.  401.     Murray  v.  Boger,  14  J.  R.  318.     See  also,  Hobari  v.  Howard,  9  Mass.  Rep.  304. 

*417 


Chap.  7.]    Of  Money  Due  upon  an  Account  Stated.     417 

commercial  adventure,  A.  sends  to  B.  an  account  stating  a  loss,  and  B.  on  ap- 
plication for  one  moiety  of  such  loss,  says  that  he  will  call  and  settle  with  A. 
This  is  evidence  of  an  adjustment  of  the  amount  between  the  parties,  in  an 
action  by  A.  to  recover  the  moiety,  (d) 

*So,  where  parties  having  cross  demands,  settle  and  balance  their  accounts, 
though  part  of  the  plaintiff's  demand  was  upon  a  transaction  for  which  no  ac- 
tion could  be  supported,  the  settlement  of  the  accounts  shall  bind  the  defen- 
dant, so  that  he  cannot  set  up  that  defence  to  an  action  for  the  balance,  (e) 

So,  upon  an  agreement  between  two  traders  to  supply  each  other,  on  the 
footing  of  goods  for  goods,  after  a  balance  struck  between  them,  such  balance 
is  to  be  paid  in  money.  (/)  So,  in  Salmon  v.  Watson, (g)  where  the  defen- 
dant agreed  verbally  with  the  plaintiff  to  take  a  house,  and  purchase  the  fix- 
tures at  a  valuation  to  be  made  by  two  brokers.  An  inventory  of  the  furniture 
and  fixtures  was  accordingly  made,  described  generally  as  "  An  inventory  of 
the  fixtures,  &c."  with  the  gross  amount  placed  at  the  foot  thereof.  In  an  ac- 
tion for  goods  sold  and  delivered,  with  a  count  on  an  account  stated  ;  the  Court 
of  Common  Pleas  held,  that  the  defendant  having  taken  possession  of  and  en- 
joyed the  furniture  and  fixtures,  and  paid  part  of  the  sum  determined  by  the 
brokers  to  be  due  for  the  same,  he  was  liable  on  the  account  stated  for  the  re- 
mainder, and  could  not  afterwards  object  to  the  plaintiff's  defective  title  to 
the  house. 

So,  an  admission  by  a  defendant  that  so  much  was  agreed  to  be  paid  to  the 
plaintiff  for  the  sale  of  standing  trees,  made  after  the  trees  had  been  felled  and 
taken  away  by  the  defendant,  will  support  a  count  upon  an  account  stated ; 
though  not  for  goods  sold  and  delivered,  (h) 

So,  proof  of  the  acknowledgment  of  one  item  of  a  debt  only  is  good  to  sup- 
port an  action  upon  a  count  stating  money  to  be  due  upon  an  account  between 
the  plaintiff  and  the  defendant.  Thus,  in  the  case  of  Highmore  v.  Primrose,^) 
which  was  an  action  upon  a  bill  of  exchange  at  the  suit  of  the  indorsee  against 
the  acceptor ;  and  upon  an  account  stated.  At  the  trial,  it  appeared  that  there 
was  a  variance  between  the  bill  produced  and  the  declaration ;  and  therefore 
the  plaintiff  was  obliged  to  resort  to  the  count  upon  an  account  stated  ;  and  to 
support  which  he  proved,  that  the  defendant  upon  being  applied  to  for  payment 
of  the  bill  admitted  it  to  be  his,  but  alleged  his  inability  to  pay  at  that  time. 
It  was  objected,  that  the  plaintiff  could  not  recover  on  the  first  count  by  reason 
of  a  variance,  the  count  describing  the  bill  as  drawn  for  value  received  by  the 
drawer,  the  words  "  value  received"  in  the  bill  itself  importiug  value  received 
by  the  drawee :  secondly,  that  the  defendant's  admission  being  confined  to  one 
item,  viz.  the  bill,  the  evidence  was  not  sufficient  to  sustain  the  count  upon  an 
account  stated.     And  these  points  being  reserved,  a  verdict  was  given  for  the 

(d)  Clarke  v.   Glennie,  3  Stark.  10.  (h)  Knowles  v.  Michel,  13  East   Rep.  249. 

(e)  Dawson  v.  Remnant,  6  Esp.  24.  See  also  Teall  v.  Anty,  4  Mo.  542.] 

( f)  Ingram  v.  Shirley,  1  Stark.  185.  (t)  5  Mauie  &  Sel.  65. 
(i)  4-  Mo.  73. 

51  *418 


418      Of  Money  Due  upon  an  Account  Stated.      [Part  II. 

plaintiff.  A  rule  nisi  for  a  nonsuit  having  been  obtained,  the  Court,  after  argu- 
ment, *determined  that  the  plaintiff  was  entitled  to  recover;  and  Lord  Ellcnbor- 
ough  Ch.  J.  said,  "  I  think  Knowles  v.  Michel (k)  is  an  authority  to  show,  that 
though  in  form  a  count  upon  an  account  stated  is  "  of  and  concerning  divers 
sums  of  money,"  yet  proof  of  one  item  is  good  to  maintain  such  a  count ;  di- 
vers may  be  supported  by  evidence  of  one.  The  practice,  I  believe,  has  been 
so,  and  if  there  is  any  variation  from  it,  it  has  arisen  from  not  attending  to  the 
form  of  the  count :  the  count  does  not  import  a  mutuality  of  account,  and  there 
seems  to  be  no  reason  why  an  account  should  not  be  stated  consisting  of  one 
item  only  as  a  plurality."  And  Holroyd  Just,  said,  "  It  has  been  held,  that 
upon  a  count  for  goods  sold  and  delivered,  the  plaintiff  may  prove  the  sale  of 
one  article,  and  that  will  be  well  enough.  The  same  rule  applies  to  this  count, 
which  is  '  of  and  concerning  divers  sums,'  as  to  the  count  for  goods  sold.  If 
the  count  be  good,  it  is  enough   if  the  plaintiff  prove   any  part  of  it." 

A  promissory  note  reciting  that  "  the  defendant  had  been  awarded  to  pay 
5002.  to  the  representatives  of  /.  S.  ;  and  that  he  had  paid  him  100/.  in  his 
lifetime,  and  thereby  promised  to  pay  his  representatives  400/.  three  months 
after  his  death  pursuant  to  the  award,  first  deducting  thereout  any  interest  or 
money  J.  S.  might  owe  to  the  defendant  on  any  account ;"  may  be  given  in 
evidence  in  an  action  brought  by  the  representatives  of  J.  S.  against  the 
defendant,  on  an  account  stated  between  him  and  J.  S.,  although  it  was  improp- 
erly stamped  as  a  promissory  note.  (/) 

So,  where  a  collector  or  renter  of  turnpike  tolls,  though  illegally  appointed, 
without  the  forms  prescribed  by  the  act  of  parliament,  may  still  recover  upon 
a  count  for  an  account  stated,  the  amount  of  the  tolls  for  which  he  had  credited 
the  defendant  passing  through  the  gate  ;  no  objection  being  made  to  the  plaintiff  s 
title  by  the  trustees  or  creditors  of  the  turnpike.  And  the  plaintiff  having  sent 
to  the  defendant  an  account  of  the  tolls  due,  who  not  long  after  sent  5/.  inclos- 
ed in  a  letter  to  the  plaintiff,  in  which  he  stated  that  he  should  have  the  remainder 
next  week,  is  evidence  of  such  an  account  stated,  and  a  recognition  of  the 
intestate's  title  to  be  accounted  with  for  the  tolls,  [m) 

So,  evidence  of  an  account  stated,  whereby  the  defendant  admitted  a  certain 
balance  due  to  the  plaintiff,  is  not  done  away,  but  confirmed  in  support  of  an 
asswnpsit,  by  evidence  of  a  foreign  judgment  recovered  by  the  plaintiff  for  the 
same  sum,  with  a  stay  of  execution  for  six  months  to  enable  the  defendant  to 
prove  a  counter  demand,  if  he  had  any  :  and  the  plaintiff  not  having  declared 
till  after  that  period,  it  was  held  no  objection  that  the  writ  was  sued  out  and 
the  defendant  arrested  before,  (n) 


(k)  Ante,  418.  (m)  Peacock  v.  Hwris,  10  East  Rep.  104. 

(0  Barloxo  v.  Broadhurst,  4  Mo.  471.  (n)  Hall  v.  Odber,  11  East  Rep.  118. 


* 


419 


Chap-  8-J  0/  Interest  ;  And  in  what  Cases  Recoverable*  420 


-CHAPTER  VI11. 


ON  PROMISES  TO  PAY  INTEREST :  AND  UPON  WHAT  CONTRACTS  OR 
DEBTS  INTEREST  IS  RECOVERABLE. 

A  contract  or  promise  to  pay  interest  is  lawful  if  it  do  not  exceed  the  rate 
allowed  by  the  statute  12  Ann.  c.  16.  ;  and  an  action  of  assumpsit  or  debt 
will  lie  for  the  recovery  thereof,  (a) 

In  actions  of  assumpsit  for  the  recovery  of  money  lent  or  paid,  &c. ;  and 
also  for  money  due  upon  bills  o{  exchange,  and  for  goods  sold  and  delivered,  and 
other  book  deb  ts,  a  contrariety  of  decisions  have  been  made  as  to  the 
plaintiff's  right  to  recover  interest.  The  general  question,  however,  was  much 
discussed  in  the  case  of  Calton  v.  Bragg, {b)  which  was  an  action  for 
goods  sold  and  delivered,  for  money  lent,  money  paid,  money  had  and 
received,  and  also  upon  a  count  for  interest.  It  was  stated  at  the  trial, 
before  Baylcy  Just.,  that  there  had  been  a  running  account  between  these 
parties  ;  in  the  course  of  which  the  plaintiff  had  supplied  the  defendant  with 
goods,  and  had  also  lent  him  several  sums  at  different  times,  to  the  extent  on 
one  occasion  of  100/. :  the  balance  of  the  account,  however,  had  been  paid  by 
the  defendant  to  the  plaintiff  for  the  goods  sold,  and  for  the  money  lent,  but  not 
for  interest  on  the  latter  ;  which  balance  the  plaintiff  had  received,  saving  his 
claim  for  interest,  to  recover  which  this  action  was  brought ;  and  the  learn- 
ed judge  directed  the  jury  to  find  for  the  plaintiff  for  the  amount  of  the  interest 
proved,  which  was  35/.  ;  reserving  the  question  for  the  opinion  of  the  Court, 
whether  interest  was  by  law  due,  or  could  be  recovered  in  such  a  case ;  and 
the  defendant's  counsel  had  liberty  to  move  to  set  aside  the  verdict  and  enter 
a  nonsuit.  This  motion  was  accordingly  made,  and  a  rule  to  show  cause  grant- 
ed ;  Baylcy  Just,  at  the  same  time  observing,  "  That  there  was  no  evidence  of 
any  course  of  dealing  between  the  parties,  from  whence  it  might  be  inferred  that 
interest  was  tacitly  agreed  to  be  taken."  The  case  was  fully  argued,  and  all 
the  former  authorities  cited.  But  the  Court  determined  that  '"'interest  could  not 
be  recovered.     And  Lord  Ellenborough  Ch.  J.,  in  delivering  his    opinion,  said 


(o)  Cro.  Car.  272.  Palin.  291.  10  Mod.  312.     assumpsit.  F.  4. 
5  Term  Rep.  553.  Coin.  Dig.  tit.  Action  upon         (b)   15  East  Rep.  223. 

*420  *42l 


421   Of  Interest;  And  in  what  Cases  Recoverable.     [Part.  If, 

"  It  is  not  only  from  decided  cases,  where  the  point  has  been  raised  upon  argu- 
ment, but  also  from  the  long  continued  practice  of  the  courts,  without  objection 
made,  that  we  collect  rules  of  law.     Lord  Mansfield  sat  here (b)  for  upwards  of 
30  years,  Lord  Kenyon  for  above  13  years,  and  I  have  now  sat  here  for  more 
than  9  years  ;  and  during  this  long  course  of  time,  no   case  has  occurrred  where, 
upon  a  mere  simple  contract  of  lending,  without    an  agreem  ent   for  payment  of 
the  principal  at  a  certain  time,  or  for  interest  to  run  immedi  ately,  or  under  spe- 
cial circumstances  from  whence  a  contract  for  interest  was  to  be  inferred,  has  in- 
terest been  ever  given.     The  mere  form  of  the  count  cannot  make  any  difference 
in  this  respect ;  for  in  most  cases  it  happens,  that  a  plaintiff  may  either  frame 
his  count  for  money  had  and  received,  or  for  money  lent.     If  interest  were  due 
in  this  case,  why  should  it  not  also  be  due  where  goods  are  to  be  paid  for  at  a 
certain  day,  when  that  time  arrives,  as  Baron  Montagu  in  one  of  the  old  cases  is 
stated  to  have  held  ;  or  in  any  other  case  where  money  is  to  be  paid  at  a    cer- 
tain day  ?     Those  cases  press  closely  upon    the    present.     If  there  were    any 
general  rule  for  interest  to  run  upon  money  due,  why  should  it  not  be  allowed 
upon  all  book  debts  ?  Juries  would  give  ear  readily  enough  to  such  a  direction  ; 
but  1  dare  not  vary  from  the  practice  which  ha3  long  prevailed  in  all  the  Courts 
of  Westminster-hall.     If  it  be  fit  that  the  whole  course  of  our  proceedings  in  re- 
spect to  giving  interest  should  be  recast,  it  must  be  done    by  act   of  parliament. 
Where  one  directs  his  agent  to  advance  money  to  another,  what  difference  can 
it  make  as  to  the  point  of  interest,  whether  he  afterwards  counts  for  money  had 
and  received,  or  for  money  lent.     If  interest  were  demandable    generally  upon 
money  due,  why  should  it  have  been  thought  necessary  to   introduce,  as  it  has 
prevailed  in  practice,  a  particular  count  for  interest  agreed  to  be  paid  where  the 
law  would  have  given  it  without  such  an  agreement.    But  in  fact  there  has  been 
no  instance  of  its  being  allowed  except  upon  written  securities  for  the  payment 
of  money  at  a  given  time,  or  upon  an  express  or  implied  agreement  for  it.  The 
judgment  of  Lord  Mansfield  in  the  case  of  Robinson  v.    Bland,(c)    and   of  the 
eminentjudges  who  sat  with  him,  shows  that  interest  is  not  due  without  a   con- 
tract for  it  for  they  would  never  have  resorted  to  the  argument  of  intention,   to 
be  collected  from  the  giving  a  void  bill  of  exchange,  in    order  to    support  the 
claim  of  interest,  if  the  law  would  have  given  it  without,  upon  the  mere  loan  of 
money.     Where  a  balance  has  been  settled  upon  an  allowance   of  interest  in  a 
banker's  books,  that  is  an  admission  by  the  party  of  a  contract  to    pay    interest 
on  the  sums  advanced  to  him  by  the  banker.     The  cases  in    equity    also  show 
the  understanding  which  has  prevailed  *upon  this   subject,    not    only    in  those 
Courts,  but  also  in  the  Courts  of  law;  as  Lord  Alvanley,  when  Master  of  the 
Rolls,  states,  in  Parker  v.    Hutchinson,  (d)  that  he  had  received  the    rule  there 
laid  down  from  Lord  Kenyon,  as  derived  from  the  practice  adopted   at  the   sit- 
tings at  Nisi  Prius.     It  was  said  indeed  in  Blancy  v.  Hendrick,  that   interest   is 
due  upon  liquidated  sums  from  the  instant  the  principal  becomes  due  and  paya- 

(b)  Court  of  King's  Bench.  (d)  3  Vcs.  Rep.  133. 

(c)  2  Bur.  1077.  10S5. 

•422 


Chap.  8.]  Of  Interest ;  And  in  what  Cases  Recoverable-  422 

ble.(e)  But  those  words  must  be  taken  in  a  restricted  sense,  and  I  must  un- 
derstand by  them  something  more  than  an  account  stated.  If  an  account  be 
stated,  and  the  nature  of  the  transaction  be  such  as  to  afford  evidence  of  an 
agreement  for  interest,  as  if  it  be  shown  to  have  been  allowed  before  upon  a 
prior  settlement  of  accounts,  then  it  may  be  warranted.  But  if  it  be  under- 
stood as  extending  the  claim  of  interest  upon  money  lent  generally,  without 
any  certain  time  of  payment,  or  any  agreement  for  interest  expressed  or  to  be 
implied,  I  shall  expect  a  body  of  authorities  more  strong  and  consistent  than 
has  yet  been  brought  forwards,  before  I  can  venture  to  say  that  it  is  allowable- 
by  law.  Hitherto  it  has  only  been  allowed  upon  written  contracts  for  the  pay- 
ment of  money  at  a  given  day,  and  upon  contracts  express  or  implied  for  the  pay- 
ment of  interest.  If  it  be  fit  that  the  rule  should  be  canied  further,  it  must  be 
done  by  the  legislature." 

Mr.  Justice  Grose  said,  "  During  all  my  experience  I  have  never  known  inter- 
est given  upon  money  lent,  or  due  for  goods  sold,  or  in  any  other  case  but  upon 
a  contract  for  interest  express  or  implied.  It  is  the  lender's  own  fault  if  he  do 
not  contract  for  interest  when  he  advances  the  money  :  but  the  law  has  long 
been  settled,  as  I  have  stated.  Why  should  interest  be  paid  at  all  without  a 
contract  for  it?  If  there  be  no  proof  of  a  contract,  it  might  be  given  against 
the  intention  of  the  parties  at  the  time  of  the  loan.  If  they  did  not  then  con- 
tract for  interest,  it  shows  that  they  did  not  mean  to  reserve  it.  To  allow  in- 
terest therefore  in  this  case  would  be  inconsistent  with  the  practice  which  has 
long  prevailed  in  Westminster-hall,  and  to  the  general  understanding  of  man- 
kind upon  the  subject ;  it  would  not  be  reasonable  but  unjust ;  there  is  uni- 
form usage  against  it,  and  the  claim  is  unauthorised  by  law." 

So,  in  the  recent  case  of  Higgins  v.  Sargcnt,{*)  it  was  held,  that  in  cove- 
nant upon  a  policy  of  insurance  upon  the  life  of  A.,  payable  six  months  after 
due  proof  of  his  death,  the  assured  are  not  entitled  to  recover  interest  upon 
the  principal  sum  insured,  from  the  expiration  of  six  months  after  due  proof  of 
the  death  of  A. 

And  Abbott  Ch.  J.  said,  "  It  is  now  established  as  a  general  principle, 
*that  interest  is  allowed  by  law  only  upon  mercantile  securities,  or  in  those 
cases  where  there  has  been  an  express  promise  to  pay  interest,  or  where  such 
promise  is  to  be  implied  from  the  usage  of  trade  or  other  circumstances.(134) 
It  is  of  importance  that  this  rule  should  be  adhered  to  ;  and  if  we  were  to  hold 
that  interest  was  payable  in  this  case,  the  application  of  the  general  rule  might 
be  brought  into  discussion  in  many  others." 


(0  It  is  so  stated  in  the  report  of  the  case  interest  from  the   time  it    was  liquidated  :" 

in  2  Bl.  761.     But  the  statement     in  3  Wils.  which  is   more    plainly    referable  to  an    im- 

206.  is,  that  "  upon     an  account  stated    be-  plied  contract   by  the    usage  of  trade, 
tween  merchant  and  merchant,  it  shall  carry         (*)  2  Barn.  &  Cres.  348. 


(131)  In  an  action   of  indebitatus   assumpsit,  where  a  promise  to  pav  interest,  is  alleged, 
an  express  promise  must  be  proved.     Tappan  v.    Austen,  1   Mass.  Rep.  31. 

*423 


423  Of  Interest  ;  And  in  what  Cases  Recoverable.  [Part  II. 

And  Holroyd,  Just,  said,  "  It  is  clearly  established  by  the  latter  authorities, 
that  unless  interest  be  payable  by  consent  of  the  parlies,  express,  or  implied 
from  the  usuage  of  trade  (as  in  the  case  of  bills  of  exchange),  or  other  cir- 
cumstances, it  is  not  due  by  common  law.  In  De  Haviland  v.  Bowerbank(f) , 
Lord  Ellenborough  was  of  opinion,  that  where  money  of  the  plaintiff  had  come 
to  the  hands  of  the  defendant,  to  establish  a  right  to  interest  upon  it,  there 
should  either  be  a  specific  agreement  to  that  effect,  or  something  should 
appear  from  which  a  promise  to  pay  interest  might  be  inferred,  or  proof  should 
be  given  of  the  money  being  used  ;  and  in  Gordon  v.  Swa?i(g)  the  same 
noble  and  learned  judge  said,  that  the  giving  of  interest  should  be  limited  to 
bills  of  exchange,  and  such  like  instruments  and  agreements  reserving  interest. 
In  the  latter  case,  although  the  money  was  payable  at  a  particular  day,  non- 
payment at  that  day  was  held  not  to  give  any  right  to  interest.  Independently 
of  these  authorities,  1  am  of  opinion  upon  the  principles  of  the  common  law, 
that  interest  is  not  payable  upon  a  sum  certain,  payable  at  a  given  day.  The 
action  of  debt  was  the  specific  remedy  appropriated  by  the  common  law  for 
the  recovery  of  a  sum  certain.  Now  in  that  action  the  defendant  was  sum- 
moned to  render  the  debt,  or  show  cause  why  he  should  not  do  so.  The 
payment  of  the  debt  satisfied  the  summons,  and  was  an  answer  to  the  action. 
If  this  therefore  had  been  an  action  of  debt,  the  payment  of  the  principal  sum 
would  have  been  a  good  defence,  because  the  interest  is  no  part  of  the  debt, 
but  it  is  claimed  only  as  damages  resulting  from  the  non-payment  of  the  debt. 
When,  indeed,  the  interest  becomes  payable  by  virtue  of  a  contract  express  or 
implied,  then  it  becomes  part  of  the  debt  itself,  and  consequently  it  would  then 
be  no  answer  to  an  action  of  debt  for  the  defendant  to  show  that  he  had  paid 
the  principal  sum  advanced.  Here,  there  being  no  contract,  either  express  or 
implied,  to  pay  interest,  it  was  no  part  of  the  debt,  but  could  only  be  recovered 
by  way  of  damages  for  detaining  the  debt.  Inasmuch,  therefore,  as  it  appears, 
that  if  the  plaintiff' had  pursued  that  remedy  which  by  the  common  law  is  speci- 
fically applicable  to  his  case,  he  could  not  have  recovered  interest  :  I  think  that 
he  ought  not  to  be  permitted  to  recover  interest  by  way  of  damages  in  an  action 
of  covenant.  I  cannot,  therefore,  say  that  the  jury  ought  to  have  given  interest 
in  this  case,  and  I  doubt  *much  whether  the  verdict  could  have  been  supported 
if  they  had  done  so." 

Now  it  may  be  collected  from  these  and  several  other  cases  which  will  be 
cited,  that,  as  a  general  and  established  rule,  interest  is  allowed  and  recovera- 
ble in  the  following  cases.  First,  where  there  is  an  express  promise  to  pay 
interest  ;(/<)  secondly,  upon  bills  of  exchange  and  promissory  notes,  and  other 
commercial  instruments  or  contracts,  upon  which  interest  is  usually  paid  and 
allowed  ;(i)   thirdly,  upon  awards,  where  the  money   awarded  is  to  be  paid  at 


(/)  Post,  424.  bank,  1  Campb.  50. 

(g)  Post,  424.  (»)     Il.id.,   and   sec  Buyley  &  Chitty  on 

(li)  .See  the  case  of  De  Haviland  v.  Bower-  Bill*. 

*424 


Chap.  8.]  Of  Interest ;  And  in  what  Cases  Recoverable.  424 

a  certain  day,  and  it  has  been  demanded  ;(A)(135)  fourthly,  in  all  cases  where, 
from  the  usage  of  trade,  or  the  general  course  of  dealing  between  the  parties, 
an  intention  to  pay  and  allow  interest  may  be  reasonably  inferred  ;  as  for  in- 
stance, where  goods  sold  are  to  be  paid  for  by  a  bill  of  exchange,  and  the  buyer 
refuses  to  give  the  bill,  the  seller  is  entitled  to  interest  from  the  time  when  the 
bill,  if  given,  would  have  become  due  :(l)  and  so  upon  a  similar  contract  where 
the  buyer  refuses  to  accept  the  goods  bought,  (m) 

But  interest  is  not  allowed  in  actions  for  goods  sold  and  delivered  without 
such  an  agreement,  even  though  the  price  is  to  be  paid  at  a  certain  day.(n) 
Nor  for  work  and  labour  or  other  book  debts,  unless  there  be  a  special  agree- 
ment or  particular  usage  to  pay  interest,  (o) 

So,  interest  cannot  be  recovered  in  an  action  for  money  had  and  received,  un- 
less it  can  be  proved  that  the  defendant  has  used  the  money,  or  something  shall 
appear  from  which  a  promise  to  pay  interest  may  be  inferred.(p)  Nor  upon  the 
balance  of  a  settled  account,  without  either  an  express  promise  to  pay  interest, 
or  it  has  been  allowed  upon  former  balances,  (q)  Nor  upon  a  policy  of  insur- 
ance. (/•) 

So,  compound  interest  is  not  recoverable  :  and  therefore  in  an  action  by  bank- 
ers for  money  over  drawn,  the  court  will  allow  only  simple  interest  upon  the 
sums  actually  advanced  ;  not  interest  upon  rests  or  balances  struck  by  them  at 
stated  times,  where  such  balances  are  partly  made  up  of  the  interest  already 
incurred,  (s)  Unless  interest  has  *been  allowed  in  former  settled  accounts, (t) 
or  the  customer  is  informed  and  knows  that  such  is  the  practice  of  the 
house. (v) 

Upon  bills  of  exchange  or  other  written  instruments  interest  is  generally  al- 
lowed from  the  date,  except  when  it  is  otherwise  expressed,  or  when  it  is  made 
payable  on  demand.  In  the  latter  case  it  is  allowed  from  the  time  of  the  de- 
mand only.  (  w)(136) 

(fc)  Penhorn  v.  Tackington,  3  Campb.  468.         (p)  De  Haviland  v.  Bowerbank,  1   Campb. 

Marquis  of  Anglesea  v.  Chafey,  Manning's  In-  50.     De  Bernales  v.    Fuller,   2   Campb.    426. 

dex,  185.     See  also  1  East  Rep.  400.     Sed  14  East  Rep.  490. 
quaere;  vid.  ante,  423.  (<j)   Clialie  v.   The  Duke  of   York,  6Esp. 

(I)  Becher  v.  Joties,  2  Campb.  428.  Rep.    45.     Nichol  v.    Thompson,    1   Campb. 

(m)  Porter  v.    Palsgrave,   lb.    472.       See  52.  n. 
also  .Boi/ce  v.  Warburton,  lb.  480.  (r)  Kingston  v.  J\PIntosh,  1   Campb.  518. 

(n)   Gordon  v.  Sivan,  lb.  429.       13  East,         (s)     Davies  v.  Pinner,  2   Campb.  486.  n. 
419.      Chaliev.   The  Duke  of  York,  6  Esp.         (t)   Bruce  v.  Hunter,  3  Camp.  467. 
Rep.  45.  (d)  Moore  v.  Voughton,  1  Stark.  487. 

(o)   Calton  v.  Braggs,  ante,  420.     See  also         (u)  Kennedy  v.  JVowA,  lb.  452.      Hopper  v. 

Bunb.  119.     3Wils.  206.     2  Bl.  Rep.  672.    1  Richmond,  lb.  507.     See  also  C nitty  on  Bills, 

H.  Bl.  305.     4  Bro.  P.  Cas.  539.  53  7.     5  Ed. 

(135)  Interest  is  due  on  a  parol  award  from  the  time  of  the  award.  Jones  v.  Ringold,  1 
Yeates,  480. 

(136)  Interest  may  be  recovered  in  an  action  for  money  advanced,  Loitard  v.  Graves,  3 
Caines,  226.     Fowler  v.  Shearer,  7  Mass.  Rep.  14.     Dilworth  v.  Sinderling,  1  Binn.  488. 

So,  in  actions  for  money  had  and  received.  Pease  v.  Barber,  3  Caines,  266.  The  People  v. 
Gasherie,  9  J.  R.  71.  Porter  v.  Bussey,  I  Mass.  Rep.  436.  Obermyer  v.  Nichols,  6  Binn.  162. 
Per  Tilghman,  Ch.  J.  Rapelie  v.  Emory,  1  Dall.  349.  So,  m  an  action  on  an  account  stated. 
Walden  v.  Sherburne,  15  J.  R.  409.     Dickinson  v.  Legare,   1  Des.  537.     So,  in  an  action  for 

*425 


425  Of  Interest ;  And  in  what  Cases  Recoverable.  [Part  II. 

the  non-delivery  of  goods,  if  the  party  be  guilty  of  fraud  or  gross  misconduct.  Jlmvry  v. 
M'Gregor,  15  J.  R.  24,  39.  So,  in  assumpsit  for  goods  sold,  interest  is  allowable  after  the 
expiration  of  the  time  of  credit.  Knox  v.  Jones,  2  Dall.  193.  See  Cratcfordv.  Willing,  4 
Dall.  289.  note  (2)     Obermyer  v.  Nichols,  ut  supra. 

Whether  interest  is  recoverable  or  not,  is  a  question  of  law,  arising  from  the  facts  in  the 
case.  Loitard  v.  Graves,  3  Caines,  234.  Per  Spencer,  J.  Interest  is  not  recoverable  for  un- 
liquidated damages  or  on  uncertain  demands.  Anonymous,  1  J.  R.  315.  Holliday  v.  Marshall, 
7  J.  R.  21 1.  Gilpins  v.  Consequa,  1  Peters  Rep.  85,  95.  Willing  v.  Consequa,  Id.  179.  Nor, 
upon  an  open,  running  account  for  goods  sold,  where  there  are  no  circumstances  from 
which  an  agreement  to  allow  interest  can  be  inferred.  Neivell  v.  Grisicold,  6  J.  R.  45.  South 
v.  Leavy,  Hardin,  518.  Nor,  in  assumpsit  for  work  and  labor.  Murry  v.  Ware's  Admr.  Id. 
519.  note. 


Chap.  9.]  Of  Contracts  to  Accept  or  Replace  Stock,  fyc.  426 


^CHAPTER    IX. 


OF  CONTRACTS  TO  ACCEPT  OR  REPLACE  STOCK,  AND  OF  THE  STA- 
TUTE REGULATING  SUCH  CONTRACTS,  AND  ALSO  TO  PREVENT 
STOCK-JOBBING.  AND  OF  THE  MEASURE  OF  DAMAGES  FOR  BREACH 
OF  CONTRACT. 

In  order  to  prevent  the  pernicious  and  destructive  practice  of  stock-jobbing, 
and  to  regulate  contracts  made  for  accepting  and  transferring  stock,  an  Act  of 
Parliament  was  passed  very  early  in  the  reign  of  George  the  Second,(a)  intitu- 
led, u  An  Act  to  prevent  the  infamous  practice  of  stock-jobbing,"  which,  after 
reciting,  "  Whereas  great  inconveniences  have  arisen,  and  do  daily  arise  by 
the  wicked,  pernicious,  and  destructive  practice  of  stock-jobbing,  whereby  ma- 
ny of  his  Majesty's  good  subjects  have  been  and  are  diverted  from  pursuing  and 
exercising  their  lawful  trades  and  vocations,  to  the  utter  ruin  of  themselves  and 
families,  to  the  great  discouragement  of  industry,  and  to  the  manifest  detriment 
of  trade  and  commerce:  for  remedy  thereof,  it  is  enacted,  "  That  all  contracts 
and  agreements  whatsoever  which  shall  be  made  or  entered  into  by  or  between 
any  person  or  persons  whatsoever,  upon  wbich  any  premium,  or  conside- 
ration in  the  nature  of  a  premium,  shall  be  given  or  paid  for  liberty  to 
put  upon,  or  deliver,  receive,  accept,  or  refuse  any  public  or  joint  stock, 
or  other  public  securities  whatsoever,  or  any  part,  share,  or  interest 
therein,  and  also  all  wagers,  and  contracts  in  the  nature  of  wagers,  and 
all  contracts  in  the  nature  of  putts,  and  refusals,  relating  to  the  then  present  or 
future  price  or  value  of  any  such  stock  or  securities  as  aforesaid,  shall  be  null 
and  void,  to  all  intents  and  purposes  whatsoever  ;  and  all  premiums,  sum  or 
sums  of  money  whatsoever,  which  shall  be  given,  received,  paid,  or  delivered, 
upon  all  such  contracts  or  agreements,  or  upon  any  such  wagers,  or  contracts 


(a)  7  Geo.  II.  c.  S.  and  made  perpetual  by     called  Sir  John  Barnard's  Act ;  it  having  been 
10  Geo.  II,  c.  8.     This  statute  is  frequently     brought  into  Parliament  and  framed  by  him. 

52  *426 


427    Of  Contracts  to  Accept  or  Replace  Stock,  $c.  [Part  IT; 

*in  the  nature  of  wagers,  as  aforesaid,  shall  be  restored  and  repaid  to  the  person  or 
persons  who  shall  give,  pay,  or  deliver  the  same,  who  shall  be  at  liberty,  within 
six  months  from  and  after  the  making  such  contract,  or  agreement,  or  laying 
any  such  wager,  to  sue  for  and  recover  the  same  from  the  person  or  persons  to 
whom  the  same  is  or  shall  be  paid,  or  delivered,  with  double  costs  of  suit,  by 
action  of  debt,  founded  on  this  act,  to  be  prosecuted  in  any  of  his  Majesty's 
courts  of  record,  in  which  action  no  essoign,  protection,  wager  of  law,  or  more 
than  one  imparlance  shall  be  allowed ;  and  it  shall  be  sufficient  therein  for  the 
plaintiff  to  allege  that  the  defendant  is  indebted  to  the  plaintiff,  or  has  received 
to  the  plaintiff's  use  the  money  or  premium  so  paid  or  received,  whereby  the 
plaintiff's  action  accrued  to  him,  according  to  the  form  of  th  is  statute,  without 
setting  forth  the  special  matter." 

And  for  the  better  discovery  of  the  monies,  or  premium,  which  shall  be  given, 

paid,  or  delivered,  and  to  be  sued  for  and  recovered  as  aforesaid,  it  is    enacted 

by  the   second  section  of  the  act,  "  that  all  and  every  the  person  or  persons, 

who,  by  virtue  of  this  present  act,  shall  or  may  be  liable  to  be  sued   for  the 

same,   shall  be  obliged  and  compellable  to   answer,   upon  oath,  such  bill  as 

shall  be  preferred  against  him  or  them,  in  any   court  of  equity,  for  discovering 

any  such   contract  or  wager;    and  the   sum  of  money,  or  premium,  so  given, 

paid,  or  delivered   as   aforesaid."     But  by  section  3,  it  is  provided,  always, 

"  that  the  plaintiffs,  relators,  or  informers  in  such  bill  shall  and  do  (at  the  same 

time  of  bringing  or  filing  such  bill)    give  good  and  sufficient  security  to  answer 

and  pay  the  defendants  in  such  bill,   full  costs  of  suit,  in  case  such  costs  shall 

be  adjudged  to  the  defendants  ;  and  that  no  person  shall  be  obliged  to  appear, 

or  to  answer   such  bill  until    such  security  is  given." 

By  section  4.  it  is  further  enacted,  "  That  all  and  every  person  or  persons 
whatsoever,  who  shall  enter  into,  make,  or  execute  any  such  contract,  bargain, 
or  agreement,  upon  which  any  premium,  or  consideration  in  the  nature  of  a 
premium,  shall  be  given  or  paid  for  liberty  to  put  upon,  or  to  deliver,  receive, 
accept,  or  refuse  any  public  or  joint  stock,  or  other  public  securities  whatso- 
ever, or  any  part,  share,  or  interest  therein,  or  any  contract,  or  bargain,  in  the  na- 
ture of  putts  and  refusals,  as  aforesaid,  or  shall  lay  any  such  wager,  or  make  any 
such  contract  in  the  nature  of  a  wager,  as  aforesaid,  (except  such  person  or  per- 
sons who  shall  actually  and  bona  fide  without  covin  or  collusion,  sue,  and  with 
effect  prosecute  for  the  recovery  of  the  money  or  premium  given,  delivered,  or 
paid  by  him,  her,  or  them,  as  aforesaid  ;  and  also  except  such  person  or  persons, 
who  shall  voluntarily,  before  any  action  or  suit  commenced,  actually  and  bona 
■fide,  without  covin  or  collusion,  repay  or  tender,  before  one  or  more  witness  or 
witnesses,  such  money,  or  premium,  as  he,  she,  or  they  shall  have  had,  taken, 
received,  or  been  paid,  as  aforesaid,  and  also  except  such  person  or  persons, 
who  shall  *discover  such  transactions,  in  any  court  of  equity,)  shall  forfeit  and 
pay  the  sum  of  500Z. ;  and  also  all  and  every  brokers,  agents,  scriveners,  or 
other  persons  negotiating,  transacting,  or  writing  any  such  contract,  bargain, 
or  agreement,  as  aforesaid,  shall  likewise  forfeit  and  pay  the  sum  of  500/." 
And  for  preventing  the  evil  practice  of  compounding,  or  making  up  differ- 
*427  *428 


Chap.  9-]  Of  Contracts  to  Accept  or  Replace  Stock,  $'C  428 

ences  for  stocks,  or  other  securities  bought,  sold,  or  at  any  time  hereafter  to 
be  agreed  so  to  be,  the  5th  section  of  the  act  enacts,  "  That  no  money,  or 
other  consideration  whatsoever,  (except  as  hereinafter  is  provided,)  shall  be 
voluntarily  given,  paid,  had,  or  received,  for  the  compounding,  satisfying,  or 
making  up  any  difference  for  the  not  transferring,  having,  or  receiving  any  pub- 
lic or  joint  stock,  or  other  public  securities,  or  for  the  not  performing  of  any  con- 
tract, or  agreement,  so  stipulated  and  agreed  to  be  performed ;  but  that  all  and 
every  such  contract  and  agreement  shall  be  specifically  performed  and  ex- 
ecuted on  all  sides,  and  the  stock  or  security  thereby  agreed  to  be  assigned, 
transferred,  or  delivered,  shall  be  actually  so  done,  and  the  money  or  other 
consideration  thereby  agreed  to  be  given  and  paid  for  the  same,  shall  also  be 
actually  and  really  given  and  paid ;  and  all  and  every  person  and  persons 
whatsoever  who  shall  voluntarily  compound,  make  up,  pay,  satisfy,  take,  or 
receive  such  difference-money,  or  other  consideration  whatsoever,  for  the  not 
delivering,  transferring,  assigning,  having,  or  receiving  such  stock,  or  other  se- 
curity, so  to  be  agreed  to  be  delivered,  transferred,  assigned,  had  or  received, 
as  aforesaid  (except  in  the  manner  hereinafter  provided)  shall  forfeit  and  pay 
the  sum  of  100/." 

By  the  6th  section  it  is  provided,  nevertheless,  "  That  no  person,  or  per- 
sons, who  shall  sell  any  public  or  joint  stock,  or  other  public  securities,  to  be 
delivered  and  paid  for  on  a  certain  day,  and  which  shall  be  refused  or  neglect- 
ed to  be  paid  for,  according  to  such  agreement,  shall  be  obliged  to  transfer 
the  same  :  but  it  shall  and  may  be  lawful  for  such  person  or  persons,  to  sell 
such  stock,  or  other  securities,  which  shall  be  so  refused  or  neglected  to  be 
paid  for,  to  any  other  person  or  persons,  for  the  best  price  which  can  be  ob- 
tained, and,  after  such  sale,  to  receive  (if  the  parties  can  agree)  or  to  recover, 
as  aforesaid,  from  the  person  or  persons  who  first  contracted  for  the  same,  all 
the  damage  which  shall  be  sustained  thereby." 

And  by  the  7th  section  it  is  also  provided,  "  That  it  shall  and  may  be  law- 
ful to  and  for  any  person  or  persons,  who  shall  buy  any  public  or  joint  stock, 
or  other  public  securities,  to  be  accepted  and  paid  for  on  a  future  day,  and 
which  shall  be  refused,  or  neglected  to  be  transferred,  to  buy  the  like  quantity 
of  such  stock,  or  other  public  securities,  of  any  other  person  or  persons,  at  the 
current  market  price ;  and  to  recover  and  receive,  after  such  purchase  and  ac- 
ceptance, (if  the  parties  can  agree)  from  the  person  or  persons  who  first  con- 
tracted to  sell  or  "deliver  the  same,  the  damage  which  shall  be  sustained  by 
reason  of  the  not  delivering  or  not  transferring  such  stock,  or  other  securities  ; 
any  thing  in  this  act,  or  any  law,  usage,  or  custom  to  the  contrary  not- 
withstanding." 

The  8th  section  of  this  act,  after  reciting,  "  Whereas  it  is  a  frequent  and 
mischievous  practice  for  persons  to  sell  and  dispose  of  stocks,  or  other  securi- 
ties, of  which  they  are  not  possessed,"  enacts,  "  That  all  contracts  and 
agreements  whatsoever,  which  shall  be  made  or  entered  into,  for  the  buy- 
ing, selling,  assigning,  or  transferring  of  any  public  or  joint  stock  or  stocks, 
or   other    public  securities   whatsoever,  or    of  any    part,  share,  or  inteiest 

*42Q 


429    Of  Contracts  to  Accept  or  Replace  Stock,  fyc.  [Part  II. 

therein  whereof  the  person  or  persons  contracting  or  agreeing,  or  on  whose  be- 
half the  contract   or  agreement  shall  be  made,  to  sell,  assign,  and  transfer  the 
same,  shall  not,  at  the  time  of  making  such  contract  or  agreement,    be  actually 
possessed  of,  or  entitled  unto  in  his,  her,  or  their   own  right,  or  in  his,   her,  or 
their  own  name  or  names,  or  in  the  name  or  names  of  a  trustee  or  trustees,    to 
their  use,  shall  be  null  and  void,  to  all  intents  or  purposes  whatsoever,  and  all  and 
every  person  and  persons  whatsoever,  contractingor  agreeing,  or  on  whose  behalf, 
and  with  whose  consent  any  contract  or  agreement  shall  be  made  to  sell,  assign 
or  transfer  any  public  or  joint  stock  or  stocks,  or  other  public  securities,  whereof 
such  person  or  persons  shall  not,  at  the  time  of  making  such  contract  or  agree- 
ment, be  actually  possessed  of,  or  entitled  unto,  in  his,  her,  or  their  own  name 
or  names,  or  in  the  name  or  names  of  a  trustee  or  trustees,  to  their  use,  or  their 
own  right,  as  aforesaid,  shall  forfeit  and  pay  the   sum  of  500/.,  to  be  recovered 
by  action  of   debt,  as  aforesaid  ;  one  moiety  thereof  to  the  use  of  His  Majesty, 
and  the  other  moiety  thereof  to  the  use  of  him,  her  or  them  who  shall  sue  for  the 
same :  and  all  and  every  broker  or  brokers,  agent  or  agents,  who  shall  negotiate, 
transact,  or  intermeddle  in  the  making,  or  procuring  to  be  made,  any  such  con- 
tract or  agreement,  as  aforesaid,  and  shall  know  that  the  person  or  persons,  by 
whom  or  on  whose    behalf  such  contract  or  agreement  shall  be  made,  is  or  are 
not  possessed  of,  or  entitled  unto,  the  stock  or  security  concerning  which  such 
contract  or  agreement  shall  be  made,  in  his,  her,  or  their  own  name  or  names, 
or  in  the  name  or  names  of  a  trustee  or  trustees,  for  their  use  or  right,  shall, 
for  every  such    offence,  forfeit  and  pay  the  sum  of  100/.,  to  be  recovered  by 
action  of  debt,  as  aforesaid." 

By  the  9th  section  it  is  enacted,  "  That  all  and  every  broker  or  brokers,  or 
other  person  or  persons,  who  shall  negotiate  or  act  as  a  broker,    receiving  bro- 
kerage in  the   buying,   selling,  or  otherwise  disposing  of  any  of  the  said  public 
or  joint  stocks,  or  other  public  securities,  shall  respectively  keep  a  book  or  reg- 
ister, which  shall  be  called  the  broker's  book ;  in  which  said  book  he  and  they 
shall  fairly,  justly,  and  *truly  enter  all  contracts,  agreements,  and  bargains,  that 
he  or  they  shall,  from  time  to  time,  make  between  any  person  or  persons  what- 
soever, on  the  day  of  the  making  such  contract  or  agreement,  together  with  the 
names  of  the  principal  parties,  as  well  buyers  as  sellers,  and  also  the  day  of 
making  such  contract  or  agreement,  to  the  intent  and  purpose  that  such  broker 
or  brokers,  and  other  person  or  persons  acting  or  negotiating  as  such,  as  afore- 
said, shall,  from  time  to  time,  produce  such  book  or  register,  when    thereunto 
lawfully  required  :   and  in  case  such  broker  or  brokers,  or  any  other  who  shall 
negotiate,  or  act  as  a  broker,  as  aforesaid,  in  relation  to  any  of  the  said  matters, 
shall  not  keep  such  book  or  register,  or  shall  wilfully  omit  to  enter  therein,  fair- 
ly, justly,  and  truly,  any  such  contract,   bargain,  or  agreement   as   aforesaid, 
he  or  they  shall,  for  every  such  offence  or  omission,  forfeit  and  pay  the  sum 
of  50/." 

And  by  the  11th  section  it  is  also  provided  and  enacted,  "That  nothing 
in  this    act  contained  shall   extend,   or  be   construed  to  extend,  to  hinder  or 
prevent  any  person  or  persons  from  lending  any  sum  or  sums  of  money  on  any 
*430 


Chap.  9.]  Of  Contracts  to  Accept  or  Replace  Sock,  fyc.  430 

public  or  joint  stocks,  or  other  public  securities  whatsoever,  or  any  part,  share, 
or  interest  therein,  or  to  prevent  or  hinder  any  defeazance,  contract,  or  agree- 
ment being  made  or  entered  into  for  the  re-delivering,  assigning,  or  transfer- 
ring such  public  or  joint  stock,  or  other  public  securities,  or  any  part,  share,  or 
interest  therein,  upon  the  re-payment  of  the  sum  or  sums  of  money  which  shall 
have  been  lent  and  borrowed  thereupon,  with  interest  for  the  same,  so  as  no 
premium,  or  other  consideration  whatsoever  be  paid  to,  or  received  by  the  per- 
son or  persons  lending  such  money,  for  or  in  consideration  of  such  loan,  more 
than  legal  interest." 

It  is  lawful  for  a  person  to  sell  out  stock,  and  advance  the  produce  to  another 
on  his  bond  to  replace  the  stock  on  a  fixed  day,  and  in  the  meantime  pay  the 
dividends,  which  would  have  accrued  due  if  the  stock  had  not  been  sold  out, 
though  such  dividends  might  exceed  legal  interest ;  and  though  by  the  fluctua- 
tion in  the  price  of  stock  the  borrower  might  have  to  pay  on  the  re-purchase 
much  more  than  the  sum  he  received ;  because  in  this  case  the  borrower  takes 
the  chance  of  the  fall  as  well  as  the  rise  of  the  funds  ;  and  in  the  former  in- 
stance he  would  of  course  be  a  gainer,  and  the  lender  derives  no  undue  advan- 
tage or  greater  profit  than  if  his  money  had  remained  in  the  funds  ;  but  if  the 
stipulation  had  been,  that  the  borrower  should  repay  a  sum  of  money  at  a  fixed 
day,  which  in  contemplation  of  the  parties  would  in  all  probability  exceed  the 
current  price  of  that  day  of  the  same  proportion  of  stock,  then  the  contract 
would  be  illegal,  because  the  borrower  is  not  in  that  case  afforded  the  fair 
chance  of  the  fluctuation  of  the  funds,  (b) 

*A  stipulation  to  purchase  stock  in  consideration  of  a  pre-existing  debt  is  valid. 
Thus,  in  the  case  of  Maddoch  v.  Rumball,(c)  where  the  defendant  being  in- 
debted to  the  plaintiff  in  486/.  4s.  Gd.  for  which  he  was  sued,  and  the  plaintiff 
wishing  to  invest  the  amount  of  the  debt  in  stock  on  the  19th  of  November, 
1803,  when  the  same  would  have  purchased  908/.  16s.  Id.  stock,  in  considera- 
tion of  forbearing  his  action  and  demand  till  the  19th  of  November,  1804,  takes 
a  bond  from  the  defendant,  conditioned  for  the  transfer  by  him  to  the  plaintiff 
on  that  day  of  908/.  16s.  Id.  stock,  with  such  interest  as  the  same  would  have 
produced  as  such  stock  in  the  meantime  :  it  was  held,  that  this  was  neither  usuri- 
ous nor  within  the  prohibition  of  the  stock-jobbing  act,  7  Geo.  2.  c.  8.  ;  and 
the  Court  said,  "  This  was  in  effect  a  loan  of  stock.  The  plaintiff  would  have  pur- 
chased stock  at  the  price  it  stood  on  the  19th  of  Nove?nbcr,  1803,  if  he  had  re- 
ceived his  debt  then ;  but  he  was  content  to  take  his  debt  in  stock,  to  the  same 
amount,  at  a  future  day :  that  is  the  case  with  every  contract  for  the  replacing 
of  stock.  The  intention  of  the  parties  to  a  loan  of  stock  is,  that  it  should  be 
sold,  and  the  same  quantity  of  stock  repurchased  at  a  future  period  by  the  bor- 
rower." 

An  agreement  for  the  purchase  of  stock,  to  be  transferred  at  a  future  day,  at 
a   price  below  the  then  value,  is  not  usurious.     This  was  settled  in  the  case  of 

(6)  Tate  v.  Wettings,  3  Term  Rep.  531.  (e)  S  East  Rep.  304. 

*431 


431    Of  Contracts  to  Accept  or  Replace  Stock,  fyc.  [Part  II. 

Pike  v.  Ledwcll,(d)  where  Lord  Ellenborough  Ch.  J.  said,  "  that  whatever  rem- 
edy the  defendant  might  have  in  equity,  on  the  ground  of  this  being  a  catching 
bargain,  he  had  none  at  law ;  contingency  in  the  thing  purchased  was  incom- 
patible with  the  idea  of  usury,  in  which  the  principal  must  always  be  cer- 
tain." (137) 

Jobbing  in  omnium,  or  mere  time  bargains  thereon,  is  within  the  stat.  7  Geo. 
2.,  and,  consequently,  void.(e)  But  an  agreement  for  selling  out  omnium  by  a 
proprietor  thereof,  to  be  replaced  in  stock,  is  not  illegal.  Thus,  in  the  case 
of  Olivierson  v.  Colcs,(f)  which  was  an  action  on  a  special  undertaking  in 
consideration  that  the  plaintiff  would  sell  out  omnium  to  the  amount  of  2000/., 
to  replace  the  same  in  stock,  or  to  give  the  plaintiff  the  current  price  for  it  if 
he  required  it :  on  the  part  of  the  defendants  it  was  objected,  that  the  contract 
was  illeo-al,  since  it  amounted  to  an  agreement  to  replace  stock  in  considera- 
tion of  selling  out  omnium,  which  was  not  stock,  and  which  might  never  even- 
tually become  stock  ;  since  if  default  were  to  be  made  in  one  payment,  the 
previous  payments  would  all  become  forfeited  ;  and  therefore  whether  omnium 
mi^ht  eventually  become  stock  rested  upon  a  contingency.  But  Lord  Ellen, 
barough  Ch.  J.  said,  "  A  person  who  has  omnium  is  potentially  in  possession 
of  stock.  The  case  certainly  differs  from  that  of  a  sale  of  actually  exist- 
ing stock,  but  it  does  not  come  within  the  mischief  intended  to  be  guarded 
against  by  Sir   John  Barnard's  Act." 

Upon  the  6th  section  of  this  act,  it  has  been  determined,  that  to   recover 
damages  against  one  who  had  refused  to  accept  and  pay  for  stock  agreed  to  be 


(d)  5Esp.  Rep.  164.  (/)  1  Stark.  Rep.  496. 

(e)  7  Term  Rep.  630. 


(137)  A  contract  was  made  on  the  1st  of  October,  1797,  to  pay,  on  the  1st  of  December  en- 
suing a  certain  sum  of  current  money,  in  Pierce's  final  settlements,  at  the  rate  of  twenty  shil- 
lings of  such  settlements,  for  each  thirteen  pence  current  money  ;  the  creditor  agreeing  to 
accept,  in  discharge  thereof,  a  like  sum  in  said  final  settlements,  at  the  rate  of  twenty 
shillings  of  such  settlements,  for  each  twenty-six  pence  current  money,  if  paid  on  or  be- 
fore the  1st  of  November  17S7.  This  contract  was  considered  as  purporting  the  delivery  of 
certificates  on  the  1st  of  November,  17S7,  at  twenty  shillings  for  every  twenty-six  pence  of  the 
amount  of  specie  advanced  ;  and  the  liability  to  pay,  in  case  of  failure,  certificates  at  half 
that  value,  only  as  a  penalty.  It  was  held,  therefore,  that  the  contract  was  not  usurious, 
nor  so  unconscionable  as  to  "be  vacated  altogether  ;  twenty-six  pence  being  only  the  lowest 
rate  of  the  market  price  of  such  certificates,  at  the  time.  But  equity  will,  in  such  case, 
grant  relief  against  the  penalty,  upon  compensation.  Groves  v.  Graves,  1  Wash.  1.  And 
The  proper  measure  of  damages,  in  such  case,  was  not  the  value  of  certificates  at  the  time 
of  the  trial  of  the  cause,  but  their  value  when  they  should  have  been  delivered  with  interest 
from  that  day  ;  no  special  damage  being  shewn.  Id.  A  different  rule  for  estimating  dama- 
ges in  a  case"  of  this  description,  was  established  in  Shepard  v.  Johnson,  2  East,  211.  Dmcnsv. 
Back,  1  Stark.  318.  See  post,  436.  And  in  the  case  of  MWrthur  v.  Lord  Seaforth,  2  Taunt. 
257.  'and  which  is  abridged,  post  436.,  it  was,  among  other  things,  held,  in  an  action  upon 
a  bond  conditioned  for  replacing  stock,  that  upon  failure  to  replace  the  stock,  the  measure 
of  damages  is  the  price  at  the  day  when  it  ought  to  have  been  replaced,  or  the  price  at  the 
day  of  trial  at  the  option  of  the  plaintiff;  and  not  the  highest  price  at  any  intermediate 
day  Sea  Reynolds  v.  Waller,  1  Wash.  164,165.  Winslow  v.  Dawson,  Id.  119.  Nelson  y. 
Matthews,  2  Hen.  &  Munf.  164,  169.  Bull  v.  Douglass,  4  Munf.  303.  A  contract  for  the  sale 
of  6000  dollars  United  States  8  per  cent,  stock,  to  be  delivered  and  regularly  transferred 
on  a  future  day,  for  6000  dollars  current  money  in  hand  paid,  is  not  usurious.  Bull  v.  Doug- 
lass, ut  supra. 

*432 


Chap.  9.]  Of  Contracts  to  Accept  or  Replace  Stock,  fyc<  432 

sold  to  him,  it  is  necessary   to  prove  an  actual  transfer    of  the  stock  to  some 
other    person,  before    the  action  brought ;   and  proof  alone    of  a    contract  to 
sell   to  such  other  person   before  the   action  brought,    though   followed   up  by 
an  actual    transfer   afterwards,  is  not   sufficient  to  sustain  the   action.     Thus, 
in  the    case  of  Heckscher  and   others    v.    Gregory  (g)   which  was  an  action   of 
assumpsit  for  not  accepting  the  transfer  of  stock  of  3  per  cent,  consols,  purchased 
by  the  defendant  of  the  plaintiff.     The    facts   were  as    follow  :  the  plaintiffs, 
who  had  written  to  their  agent,  Mr.  Eliason,  on  the  22d  of  April,  1803,  advis- 
ing him  to  sell  out  their  stock  as  soon  as  stocks  rose  to  a  certain   price  :  and  an 
opportunity  offering  for  this  purpose  on  the  5th  of  May,  upon  intelligence  then 
supposed  to  have  been  communicated  by  one  of  his  His  Majesty's  secretaries 
of  state,  to  the  Lord  Mayor  of  London,  purporting  that  all  differences  subsist- 
ing between  this  country  and  France  were  happily  terminated ;  (a  letter  which 
very  soon  afterwards  turned  out  to  be  a  forgery  ;)  in  consequence  of  which  the 
stocks  suddenly  rose  to  70  1-4?.     Eliason's  broker  contracted  for  the  sale  of  the 
stock  at   that  price  to  the  defendant,  and  a  transfer  was,  on  the  same  day,  di- 
rected to  be  made  to  him  ;  and  the  ticket   necessary  for  making  the  transfer  was 
given  in  at  the  Bank.     But  before  such  transfer   could  be  made,  the  fraud    was 
discovered,  and  the  defendant  refused  to  execute  his  bargain,  though  the  stock 
was  formally  tendered  to  him  on  the  same  day.     In  consequence  of  the  defen- 
dant's refusal  Eliason  wrote   to  his  principals  abroad,  the  plaintiffs,  and,  on  the 
receipt  of  their  answer,   the   plaintiff's  broker   received  directions  to  sell   the 
stock  on  the  9th  June   following ;  and  a   contract  of  sale  was  then  according- 
ly made  to  a  Mr.  Cope,  for  57  1-4/.  ex.  div.  ;  but  as  the  stocks  were  then  shut,  no 
transfer  could  be  made,  nor  was  any  in  fact  made  till  the  opening  on  the  6th 
of  July,  1803.     The  declaration  was  of  Trinity  Term    1803,  and  the   memo- 
randum  on  the  Nisi  Prius   record  was  of  the   25th  of  June,  to  which   day,  of 
course,  the  commencement  of  the  action  related.     Upon  these  facts  the  Court 
were  of  opinion  that  an  actual  transfer  was  necessary  to  support  the  action  ; 
and  for  want  of  such  transfer  before  the    action  brought,  the  plaintiff  could  not 
sustain  the  action.   Lord  Ellenborough  Ch.  J.  said,   "  The  object  of  the  act  was 
to  prevent  radically  all  dealings  in  stock  by  persons  who  are  not  proprietors, 
and  who   should  not  actually  make  a   transfer  of  their  interest  in  the   stock. 
And,  therefore,   to  entitle  the  proprietor  to  recover  damages  in  any  case  for  the 
non-performance  of  a  contract  for  the  purchase  of  his  stock,  he  must  either  spe- 
cifically carry   that  contract   into  execution,  by  first  making   a    transfer  to  the 
party  with  *whom  he  contracted,  according  to  the  5th  section,  or,  in  case  of  the 
insolvency  or  inability  of  the  latter,  by  first  making  an  actual  transfer  to  a  substi- 
tuted purchaser,  according  to  the  provision  of  the  6th  section  ;  and  then  he  may 
recover  the  difference  against  the  original  contractor.     But  in  no  case  shall  any 
consideration  be  voluntarily  paid  for  the  compounding  any  difference  for  the  not 
transferring  stock ;  but  there  must  be  an   actual  transfer :  and  then  the  differ- 
ence between  the  purchase-money  contracted  for,  and   that  actually   received, 

(g)  4  East  Rep.  607. 

*433 


433  Of  Contracts  to  Jlccept  or  Replace  Stock,  fyc.  [Part  II* 

shall  be  the  measure  of  damage  to  be  recovered.  The  5th  section  requires 
that  the  contract  shall  be  specifically  performed :  but  that  cannot  be  said  to  be 
a  specific  performance  where  any  thing  executory  remains  to  be  done.  The 
stock  agreed  to  be  assigned,  transferred,  or  delivered,  shall  be  actually  so  done. 
The  money,  too,  agreed  to  be  given  shall  be  actually  and  really  given  or  paid. 
The  6th  section  merely  enables  the  proprietor  to  substitute  another  purchaser 
in  lieu  of  him  with  whom  he  had  contracted,  and  who  had  refused  or  neglected 
to  pay  for  the  stock  ;  but  that  is  to  be  done  in  the  same  manner,  by  an  actual 
sale  and  transfer,  and  then  the  price  actually  paid,  compared  with  that  which 
was  contracted  to  be  paid,  is  to  form  the  measure  of  damages  for  the  non-per- 
formance of  the  original  contract.  The  act  says,  that  after  such  sale  the  party 
shall  receive  or  recover  the  damage  ;  but  that  cannot  be  till  after  the  completion 
of  the  contract  of  sale  which  is  by  the  transfer.  In  each  case  provided  for  by 
the  act,  there  must  be  a  specific  contract  of  sale  executed ;  and  when  the  con- 
tract of  sale  is  thus  perfected,  the  difference  is,  that  the  party  is  entitled  to  recov- 
er in  damages  against  the  person  with  whom  he  had  contracted,  and  who  had  re- 
fused tc  perform  his  contract.  The  words  are  "  That  no  person  who  shall 
sell  any  stock,"  &,c.(h)  There,  indeed,  the  word  sell  is  not  used  in  its  proper 
sense,  as  denoting  a  perfect  and  complete  sale,  but  in  a  looser  sense,  as  denot- 
ing a  contrast  for  sale,  an  inchoate  sale,  as  it  may  be  called,  one  to  be  perfected 
afterwards  by  an  actual  transfer :  for  the  clause  goes  on  to  say,  that  no  person 
who  shall  sell  stock  "  to  be  delivered  and  paid  for  on  a  certain  day,  and  which 
shall  be  refused  or  neglected  to  be  paid  for  according  to  such  agreement,  shall 
be  obliged  to  transfer  the  same  ;"  but  he  may  sell  such  stock  to  any  other 
person,  &c,  and,  after  such  sale,  receive  or  recover  from  the  first  contrac- 
tor the  damages  sustained  by  his  breach  of  contract.  But  the  whole  context 
and  spirit  of  the  act  shows  that  by  the  word  sale,  in  the  latter  part,  was  meant, 
not  merely  a  contract  of  sale,  but  a  sale  properly  so  called,  followed  up  and 
perfected  by  an  actual  transfer :  for  otherwise  the  whole  policy  of  the  act 
might  be  defeated,  as  a  man  might  make  twenty  contracts  of  sale  of  the  same 
stock,  and  satisfy  the  words  of  the  act,  by  stipulating  for  '  as  many  contracts 
*of  resale,'  paying  or  receiving  the  difference,  without  the  stock  being  ever 
actually  transferred  out  of  his  own  name.  But  there  can  be  but  one  transfer 
of  the  same  stock  ;  and  that  was  the  security  intended  by  the  legislature  for 
the  reality  of  the  transaction.  Here  it  unfortunately  happened  that  the  stock 
was  shut  at  the  time  when  the  contract  of  sale  was  made,  in  consequence  of 
which  no  transfer  could  be  made  of  it  at  the  time  :  but  we  cannot  supply  the 
omission  ;  and,  for  want  of  such  transfer  before  the  action  brought,  the  requisite 
of  the  act  has  not  been  complied  with,  and  the  plaintiff  cannot  sustain  his 
action." 

So,  in  the  case  of  Bordenave  v.  Gregory, (i)  it  was  determined,  that  in  an 
action  for  not  accepting  stock  agreed  to  be  transferred  on  request,  an  averment 
that  the  plaintiff  was  ready  and  willing  to  transfer,  and  requested  the  defendant 


(h)  Ante,  428.  (f)  5  East  Rep.  107. 

'434 


Chap.  9.]  Of  Contracts  to  Accept  or  Replace  Stock,  #c.  434 

to  accept  the  stock  which  he  refused,  can  only  be  satisfied  by  showing  an 
actual  tender  and  refusal,  or  that  the  plaintiff  waited  at  the  Bank,  on  the  day 
when  it  was  understood  that  the  transfer  was  to  be  made,  until  the  close  of  the 
books,  which  was  the  latest  time  when  the  transfer  could  be  made.  But  in 
such  action  it  is  not  necessary  for  the  plaintiff  to  show  that  he  transferred  the 
stock  to  another  at  the  next  possible  transfer  day,  after  default  made  by  the 
original  contractor,  provided  the  stock  were  transferred  before  the  action  brought ; 
though,  if  the  plaintiff  might  have  obtained  more  for  the  stock  by  a  sale  on  any 
intermediate  day,  between  the  original  default  and  the  actual  sale,  that  will  go 
in  reduction  of  the  damages  sustained  by  the  plaintiff  by  such  default.  The 
reporter  adds,  that  the  majority  of  the  judges  of  the  court  were  of  opinion  that 
the  act  of  parliament  did  not  require,  as  a  condition  precedent  to  maintaining 
the  action  for  damages  for  not  performing  a  contract  to  purchase  and  accept 
stock,  that  the  proprietor  should,  on  the  defendant's  neglect  or  refusal  to  accept 
the  stock,  have  sold  it  to  another  on  or  before  the  next  transfer  day  after  such 
default :  but  it  merely  says,  that  it  shall  be  lawful  for  him  to  sell  such  stock, 
not  saying  when.  And  it  was  sufficient,  they  intimated,  if  the  stock  were  sold 
and  transferred  at  any  time  prior  to  the  commencement  of  the  action  against 
the  defendant  who  had  so  made  default ;  especially  where  due  diligence  had  been 
used  by  the  proprietor,  as  the  jury  had  found  in  this  case.  Though  if  the  stock 
had  risen  in  value,  in  the  intermediate  time  between  the  default  of  the  de- 
fendant and  the  time  when  the  stock  was  actually  sold  and  transferred,  so  that 
the  plaintiff  might  have  obtained  a  higher  price  than  that  for  which  it  was 
actually  sold,  but  less  than  the  price  contracted  for  by  the  defendant,  they 
thought  it  material  for  the  consideration  of  the  jury,  in  assessing  the  dam- 
ages ;  because  the  statute  directs,  that  the  party  injured  shall  recover  from  the 
person  who  first  contracted  for  the  purchase  of  the  stock,  "  all  the  damage 
which  shall  *be  sustained  thereby,"  that  is,  from  his  default ;  and  the  damage 
to  be  sustained  thereby  does  not  necessarily  mean  the  difference  of  the  price 
on  the  day  of  the  actual  sale,  and  that  for  which  it  was  contracted  to  be  sold  : 
for  if  he  might  have  obtained  more  at  any  intermediate  time,  he  may  not  be  said 
to  have  thereby  sustained  (that  is,  by  the  default  of  the  defendant,)  the  damage 
which  he  incurred  by  waiting,  but  by  his  own  default.  The  jury  therefore 
were,  in  each  case,  to  inquire  whether  the  plaintiff  might  not  have  sold  sooner 
than  he  did,  and  thereby  saved  part  of  the  loss. 

Upon  the  8th  section  of  the  act  it  has  been  decided,  that  if  A.,  being  possess- 
ed of  a  certain  quantity  of  stock,  empowers  B.,  at  his  request,  to  sell  the 
same  for  his  own  benefit,  in  consideration  of  which  B.  agrees  to  transfer,  at 
the  next  opening,  the  same  quantity  of  stock  in  A's  name,  such  a  contract  is 
not  prohibited  by  the  act;  but  that,  on  failure  of  B.'s  engagement,  A.  may 
maintain  an  action  of  assumpsit  against  B.  to  recover  the  value  of  the  stock. 
Thus,  in  the  case  of  Sanders  v.  Kentish  and  Hawksleij,{k)  which  was  an  ac- 
tion of  assumpsit   for  not  transferring  3000/.  4 per  cents,   into  the  plaintiff's 

(k)  8  Term  Rep.  162.     2  Esp.    Rep.  698.     S.   P. 

S3  *435 


435  Of  Contracts  to  Accept  or  Replace  Stock,  fyc  [Part  II. 

name,  at  the  opening  day  in  April,  1795  ;  on  the  trial,  a  verdict  was  found  for 
the  plaintiff  for  2820/.,  subject  to  the  opinion  of  the  Court  of  King's  Bench  on 
the  following  case  : — 

On  the  1st  of  December,  1794,  the  plaintiff,  being  possessed  of  the  sum  of 
3000/.  4  per  cent,  annuities,  executed  to  the  defendant,  Kentish,  a  letter  of  at- 
torney, empowering  him  to  sell  the  same,  and  to  apply  the  produce  for  his  own 
benefit ;  in  consideration   of  which,  Kentish,  and  the  defendant  Hawksley,  as 
a  surety  for  Kentish,  signed  an  engagement,  or  undei taking,  whereby  they  en- 
gaged "  on  the  opening  of  the  4  per  cents,  consols,  to  transfer  3000/.  4 per  cent. 
annuities,  in  the  name  of  the  plaintiff,  in  lieu  of  the  same  sum  sold  by  him  on 
account  of  Kentish.''''     On  the  3d  of  December,    1794,  the  defendant,  Kentish, 
by  virtue  of  the  letter  of  attorney,  sold  and  transferred  the  said  stock  to  three 
different  persons,  for  2516/.  5.?.,  which  he  received  for  his  own  use.     No  stock 
was  transferred  to  the  plaintiff  according  to  the  above  agreement.     The  defen- 
dants, at  the  time  of  making  the  agreement  to  transfer  the  stock   as  aforesaid, 
were  not,  nor  was  either  of  them  possessed  of  or  entitled  to,  in  their  or  either 
of  their  own  name  or  names,  or  in  the  name  or  names  of  a  trustee  or  trustees, 
to  their  or  either  of  their  use,  of  any  such  stock  as  in  the  contract  or  agreement 
mentioned,  or  any  4  per  cent,     annuities  whatsoever.     The  question   was,  whe- 
ther the  plaintiff  was  prevented  from  recovering  by  the  statute  7  Geo.  2.  c.  8. 
s.  8.  ?  The  Court  were  of  opinion,  that  the  contract  was  valid,  and  not  prohib- 
ited by  the  statute,  and  that  the  plaintiff  was  entitled  to  recover.     And  Lord 
Kenyon  Ch.  J.  said,  "  It  is  impossible  to  read  this  case  without  feeling  great  in- 
dignation at  the  conduct  #of  the  defendant  Kentish.     The  case  is  shortly  this  : 
the  defendant,   Kentish,  who  is  a  stockbroker,   and  who   was   therefore   most 
probably  acquainted  with  the  statute  on  which  his  counsel  has  now  relied,  ap- 
plied to  the  plaintiff,  a  clergyman,  who  was  probably  ignorant  of  that  law,  and 
obtained  from  him  a  loan  of  3000/.  stock,  on  an  undertaking  to  replace  the 
same  stock  on  a  given  day  ;  from  this  transaction  the  plaintiff  was  to  derive  no 
advantage  whatever ;  the  plaintiff  gave  him  a  letter  of  attorney,   empowering 
him  to  sell  the  stock ;  he  then  put  the  money  into  his  pocket,  and  when  the  day 
of  payment  arrived  refused  to  pay  the  plaintiff,  insisting  that  the  statute  render- 
ed the  contract  void,  and   that  therefore  the  plaintiff  cannot  enforce  that  contract 
in  a  court  of  law.      To  be  sure  if  such  were   the  positive  provisions  of  that  stat- 
ute, the  consequence  must  follow,  however  hard  it  might  press  upon  the  plain- 
tiff.    But  before  we   assented  to  so  monstrous  a  proposition,  we  would  look 
with  eagle's  eyes  into  every  part  of  the  statute,  to  see  that  such  was  the  inten- 
tion of  the  legislature.     Their  intention   is  to  be  collected  from  the  whole  act 
taken  together.     The  act  is  intitled  '  An  Act  to  prevent  the  infamous  Practice 
of  Stock-jobbing.'     But  if  the  defendant's  objection  were  to  prevail,  the  title 
of  the  act  ought  to  be   altered,   and  it  should  run  thus,  '  An  Act  to  encourage 
the   wickedness   of  Stock-jobbers,  and  to   give  them  the  exclusive  privilege  of 
cheating  the  rest  of  Mankind.'     On  considering  the  whole  of  the   act  together, 
I  am  clearly  of  opinion,  that  its  object  was  only  to  prevent  gambling  in  the 
*436 


Chap.  9«]  Of  Contracts  to  Accept  or  Replace  Stock,  fyc.  436 

funds  ;  but  the  legislature  did  not  mean  to  prohibit  a  loan  of  stock,  and  an  un- 
dertaking to  replace  it.  I  do  not  think  that  this  case  comes  within  the  mean- 
ing of  the  prohibitory  clauses  in  the   act,  but  it  is  within  the  exception  in  the 

last  section." 

In  estimating  the  measure  of  damages  in  an  action  for  breach  of  a  contract 
to  replace  stock  on  a  fixed  day,  it  is  not  enough  to  take  the  value  of  the  stock 
on  that  day,  if  it  has  risen  in  the  meantime,  but  the  highest  value  as  it  stood 
at  the  time  of  the  trial,  there  being  no  offer  of  the  defendant  to  replace  it  in 
the  intermediate  time,  while  the  market  was  rising.(^)  And  in  the  case  of 
Ml Arthur  v.  Lord  Seaforth,(m)  which  was  an  action  upon  a  bond  conditioned 
for  replacing  stock,  it  was  decided,  that  the  obligee  is  not  entitled  to  special 
damages  for  a  profit  which  he  might  have  made  if  it  had  been  sooner  replaced, 
unless  he  shows  that  he  actually  would  have  made  it :  but  that  on  a  failure  to 
replace  stock,  the  measure  of  damages  is  the  price  at  the  day  when  it  ought 
to  have  been  replaced,  or  the  price  at  the  day  of  the  trial,  at  the  option  of  the 
plaintiff;  but  not  the  highest  price  at  any  intermediate  day  :  and  it  appearing 
that  the  plaintiff  gave  a  bond  conditioned  to  replace  5  per  cent.  *stock  on  a  giv- 
en day  :  after  that  day  Government  gave  the  holders  of  that  stock  an  option 
to  be  paid  off  at  par,  or  to  commute  their  stock  for  3  per  cents.  ;  the  plaintiff 
expressed  to  the  defendant  a  wish  to  have  the  stock  replaced,  that  he  might  be 
paid  at  par,  but  no  wish  to  take  3  per  cent,  stock :  it  was  held,  that  he  was 
not  entitled  to  recover  the  price  of  so  much  3  per  cent,  stock  as  he  might  have 
exchanged  for  the  5  per  cents. 

(I)  Shepherd  v.  Johnson,  2  East  Rep.  211.         (m)  2  Taunt.  257. 
Downs  v.  Back.   1  Stark.   Rep.  318.  S.  P. 

*437 


438         Of  Agreements  In  Restraint  oj  Trade,        [Part  II. 


•CIIAPTEU  X. 


OF  AGREEMENTS  NOT  TO  CARRY  ON  TRADE  WITHIN  CERTAIN  LIM- 
ITS, &c. 

If  a  man  for  a  valuable  consideration  agree  that  he  will  not  exercise  his 
trade  or  profession  within  a  particular  place,  he  shall  be  bound  by  it :  but  a  pro- 
mise or  obligation  which  binds  any  to  a  total  restraint  of  trade,  whether  for  a 
limited  time  or  generally,  is  unlawful  and  void.(«)  (138) 

Thus,  in  the  case  of  Mitchell  v.  Reynolds, (b)  which  was  an  action  of  deli 
on  bond.  The  defendant  prayed  oyer  of  the  condition,  which  recited,  that 
whereas  the  defendant  had  assigned  to  the  plaintiff  a  lease  of  a  messuage  and 
bakehouse  in  Liquorpond  Street,  in  the  parish  of  St.  Andrew,  H  bib  cm,  for  the 
term  of  five  years  :  now  if  the  defendant  should  not  exercise  the  trade  of  a  baker 
within  that  parish,  during  the  said  term,  or,  in  case  he  did,  should  within 
three  days  after  proof  thereof  made,  pay  to  the  plaintiff  the  sum  of  50/., 
then  the  said  obligation  to  be  void:  which  being  read  and  heard,  he  pleaded 
that  he  was  a  baker  by  trade,  that  he  had  served  an  apprenticeship  to  it,  rati- 
one  cujus  the  said  bond  was  void  in  law,  per  quod  he  did  trade  prout  ei  bene  licuit. 
Whereupon  the  plaintiff  demurred  in  law.  And  after  this  matter  had  been 
several  times  argued  at  the  bar,  Parker  Ch.  J.  delivered  the  resolution 
of  the    Court    as    follows:     "The    general     question    upon    this     record    is, 


O)  Vide  Com.  Dig.  tit.  Trade,    (D.)  3.         subject;  and  put  at  rent  any  seeming  differ- 
(6)   1  P.  Wms.  181.      Note,  this  "case  has     ence  of  opinion  in  former  cases. 
fully  settled  and  established  the  law  on  this 


(138)  See  Pike  v.  Thomas,  4  Bibh.  486.  A  covenant  in  restraint  of  trade  generally,  through- 
out the  State,  is  void  ;  but  it  is  otherwise  of  a  covenant  not  to  trade  in  a  particular  place, 
and  for  a  limited  time.  Nobles  v.  Bates,  7  Cowen,  307.  So,  where  one,  for  a  valuable  con- 
sideration, covenanted  that  he  Mould  not  be,  directly  or  indirectly,  interested  in  any  voyage 
to  the  northwest  coast  of  America,  or  in  any  traffic  with  the  natives  of  that  coast,  for  seven 
years  ;  it  was  held,  that  such  contract  was  not  void,  as  against  the  policy  of  the  law,  being 
in  restraint  of  trade.  Perkins  v.  Lyman,  9  Mass.  Rep.  522.  So,  where  one  agreed  not  to 
rnn  a  stage  on  the  road  between  Boston  and  Providence,  in  opposition  to  the  plaintiff's  stage. 
Pierce  v. ~  Fuller,  8  Mass.  Rep.  223.  So,  an  agreement  not  to  carry  on  the  business  of  a 
grocer,  within  a  certain  limited  distance  in  the  city  of  Boston.  Pierce  v.  Woodward,  6  Pick. 
206.  And  so,  a  usage  among  printers  and  booksellers,  that  a  printer  contracting  to  print 
for  a  bookseller  a  certain  number  of  copies  of  any  work,  is  not  at  liberty  to  print  from  the 
same  types,  while  standing,  an  extra  number  of  copies  for  his  own  disposal,  is  not  an  un- 
reasonable usage,  nor  in  restraint  of  trade.     Williams  v.  Gilman,  3  Greenl.  27G. 

M38 


Chap.  10.]      Of  Agreements  In  Restraint  of  Trade.       438 

whether  this  bond,  being  made  in  restraint  of  trade,  be  good  ?  And  we  are  all 
of  opinion,  that  a  special  consideration  being  set  forth  in  the  condition,  which 
shows  it  was  reasonable  for  the  parties  to  enter  into  it,  the  same  is  good ;  and 
that  the  true  distinction  of  this  case  is,  not  between  promises  and  bonds,  but 
between  contracts  with  and  without  consideration  ;  and  that  wherever  a  sufficient 
consideration  appears  to  make  it  a  proper  and  an  useful  contract,  and  such  as  can- 
not be  set  aside  without  *injury  to  a  fair  contractor,  it  ought  to  be  maintained, 
but  with  this  constant  diversity,  viz.  where  the  restraint  is  general  not  to  exer- 
cise a  trade  throughout  the  kingdom,  and  where  it  is  limited  to  a  particular 
place  ;  for  general  restraints  are  all  void,  whether  by  bond,  covenant,  or  pro- 
mise, &c.  with  or  without  consideration,  and  whether  it  be  of  the  party's  own 
trade  or  not.  Cro.  Jac.  596.  2  Bulst.  136.  Allen,  67.  Particular  restraints 
are  either  with  or  without  consideration :  such  as  are  made  without  considera- 
tion, are  void  by  what  sort  of  contract  soever  created.  2  H.  5.  5  Moor,  115. 
242.  2  Leon.  210.  Cro.  Eliz.  872.  Noy,  98.  Owen  143.  2  Keb.  377. 
March  191.  Show.  2.  (not  well  reported.)  2  Saund.  155.  But  particular  re- 
straints with  consideration  are  valid.  Thus,  where  a  contract  for  restraint  of 
trade  appears  to  be  made  upon  a  good  and  adequate  consideration,  so  as  to 
make  it  a  proper  and  useful  contract,  it  is  good.  2  Bulst.  136.  Rogers  v. 
Parry.  Though  that  case  is  wrong  reported,  as  appears  by  the  roll,  which 
I  have  caused  to  be  searched,  it  is  B.  R.  Trin.  11  Jac.  1  Rot.  223.  And  the 
resolutions  of  the  judges  were  not  grounded  upon  its  being  a  particular  restraint, 
but  upon  its  being  a  particular  restraint,  with  a  consideration  ;  and  the  stress 
lies  on  the  words,  as  the  case  is  here,  though,  as  they  stand  in  the  book,  they 
do  not  seem  material.  Noy,  98.  W.  Jones,  13.  Cro.  Jac.  596.  In  that 
case,  all  the  reasons  are  clearly  stated,  and,  indeed,  all  the  books,  when  care- 
fully examined,  seemed  to  concur  in  the  distinction  of  restraints  general,  and 
restraints  particular,  and  with  or  without  consideration,  which  stand  upon  very 
good  foundation.  Volenti  non  Jit  injuria  ;  a  man  may,  upon  a  valuable  con- 
sideration, by  his  own  consent,  and  for  his  own  profit,  give  over  his  trade,  and 
part  with  it  to  another  in  a  particular  place." 

The  principle  of  this  case  was  afterwards  recognized  and  adopted  in  the  case 
of  Chesman  and  Elizabeth  his  wife  v.  Nainby  in  error,  (c)  which  was  an  action 
brought  by  the  defendant  in  error  against  the  plaintiff  in  error  in  Easter  Term 
1725,  in  the  Court  of  Common  Pleas,  on  a  bond  dated  the  5th  of  October,  1721, 
for  100/.  entered  into  by  Elizabeth,  when  unmarried,  to  the  defendant.  To  this; 
action  the  plaintiffs  pleaded,  and  set  forth  the  condition  of  the  bond,  which 
was  in  the  words  following,  viz.  "  Whereas  the  above  named  Margery  Nain- 
by, at  the  special  instance  and  request  of  the  above  bounden  Elizabeth  Vickers, 
Its  to  take  her  the  said  Elizabeth  Vickcrs,  for  her  hired  servant,  to  attend  in 
her  shop,  and  to  inspect  her  customers  there,  and  to  show  her  goods,  and 
further  to  stand  by  and  assist  her  the  said  Margery  in  her  said   trade  and  busi- 


(c)  1  Bro.  P.  C.  234.  2  Stra.  739.  2  Lord  Raym.  1 156.  S.  C. 

*439 


439  Of  Agreements  In  Restraint  of  Trade.       [Part  II. 

nesa  of  a  linen-draper,  whereby  it  is  presumed  the  said  Elizabeth,  if  she  contin- 
ues any  length  of  time  in  the  said  service  of  the  said  Margery,  may  become  a 
perfect  and  knowing  person  in  the  said  trade  and  mystery.  And  whereas  the  said 
Margery  Nainby  consents  to  hire  *and  take  her  the  said  Elizabeth  Vickers,  upon 
and  in  consideration  only,  upon  the  express  promise  and  agreement  of  the  said 
Elizabeth,  that  she  shall  not,  nor  will  at  any  time,  after  she  shall  have  left  the 
service  of  her  the  said  Margery,  set  up  or  exercise  the  said  trade  or  mystery  of 
a  linen-draper,  either  by  herself,  or  by  any  other  person  or  persons  in  trust  for 
her,  or  for  her  use,  either  directly  or  indirectly,  in  any  shop,  room,  or  place, 
within  the  space  of  half  a  mile  of  the  now  dwelling-house  of  the   said  Margery 
Nainby,  situate  in  Drury  Lane,  or  of  any  other  house  that  she  the  said   Marge- 
ry Nainby,  her  executors  or   administrators,  shall  think  proper  to  remove  to,  in 
order  to  carry  on  the  said  trade  of  a  linen-draper  :  nor  shall  she,  the  said  Eliz- 
abeth, within  the  same  space  of  half  a  mile,  directly  or   indirectly,  be  concerned 
in,  or  assist  or  instruct  any  other  person  or  persons  in  the  managing  and  carrying 
on  the  said  trade,  under  colour  or  pretence  of  being  a   servant  to  such  person 
or  persons,  or  under  any  other  colour  or  pretence  whatever.     Which  said  ex- 
press promise  and  agreement,  joined  with  the  good  character  and  opinion  that 
she  the  said  Margery  hath  of  the  integrity  and  honesty  of  her  the  said  Eliz- 
abeth, is  the  sole  consideration  and  inducement  that  has  obliged  the  said  Marge- 
ry to  take  the  said  Elizabeth  into  her  service  for  the  space  of  three  years.  Now 
the  condition  of  the  above  obligation  is    such,   that  if  the  said  Elizabeth  Vick- 
ers shall  act  contrary  to  and  in  breach  of  the  above  recited  promise  and  agree- 
ment, according  to  the  true  intent  and  meaning  thereof,  or  of  any  part  there- 
of; that  then  and  in  such  case,  the  said  Elizabeth  Vickers,  her  executors  and 
administrators,  shall  thereupon  pay  or  cause  to  be  paid  unto  the  said  Mar- 
gery Nainby,  her  executors,  administrators,  and  assigns,  the  full  and  just  sum 
of  100L  of  good  and  lawful   money  of  Great  Britain,  without  fraud  or  further 
delay,  the  said  sum  of  100/.  being  the  consideration  money  which  is  computed 
the  said  Margery  Nainby  might  reasonably  expect    with  an    apprentice  to  the 
said  trade  ;  that  then  this  obligation  to  be  void,  otherwise  to  be  and  remain   in 
full  force  and  virtue  in  law."     And  then  the  plaintiffs  pleaded,  that   the    said 
Elizabeth  continued  in   the  service  of  the  said  Margery  to   the  28th  of  April, 
1724,  and  then  departed,  and  left  the  said  service  ;  and  that  the  said   Margery 
continued  to  reside  and  exercise  her  trade  in  her  said  dwelling  house  in  Drury 
Lane,  from  the  time  of  making  the  said  bond,  to  the  day  of  suing  out  the  origin- 
al writ ;  and  that  she  the  said  Elizabeth,  within  the  space  of  half  a  mile  from 
the  said  dwelling-house  of  the  said  Margery,  at  any  time  after  the   departure  of 
the  said  Elizabeth  from  the  service  of  the  said  Margery,  directly  or    indirectly, 
was  not  concerned  in  or  assisted,  or  instructed  any  person  or  persons  whatsoev- 
er in  managing  or  exercising  the  trade  aforesaid,  under  colour  or  pretence  of  be- 
ing a  servant  to  such  person  or  persons,  or  under  any  other  colour  or  pretence 
whatsoever.     And  further,  that  she  the  said  Elizabeth,   at  any  time  after   her 
departure  from  the  service  *of  the  said  Margery,  did  not  use  or  exercise  the  said 
art  or  trade,  either  by  herself,  or  any  other  person  or  persons  in  trust  for  her,  oi 
*440  *111 


Chap.  10.]     Of  Agreements  In  Restraint  of  Trade.        441 

for  her  use,  either  directly  or  indirectly,  in  any  shop,  room,  or  place  within  the 
space  of  half  a  mile  from  the  dwelling-house  of  the  said  Margery. 

To  this  plea  the  defendant  Nainby  replied,  that  the  said  Elizabeth,  from  the 
time  of  making  the  said  bond,  continued  and  remained  in  the  service  afore- 
said, and  from  thence  departed  and  left  her  said  service,  as  the  said  plaintiffs 
above  alleged  ;  and  that  the  defendant  Margery  Nainby  continued  to  inhabit, 
reside,  and  exercise  her  trade,  in  manner  as  the  said  plaintiffs  by  their  plea 
alleged.  But  the  defendant  further  said,  that  the  said  Elizabeth  within  the 
space  of  half  a  mile  from  the  dwelling-house  of  the  said  Margery,  in  the  said 
plea  above  mentioned,  and  within  nine  months  after  the  departure  of  the  said 
Elizabeth  from  the  service  aforesaid,  did  assist  and  instruct  a  certain  person, 
viz.  the  said  David  Chesman,  in  managing  and  exercising  the  trade  aforesaid, 
in  the  condition  abovementioned,  against  the  tenor  of  the  said  condition,  to 
wit,  in  Drury  Lane  in  the  parish  of  St.  Giles  in  the  Fields.  And  on  this  issue 
was  joined.  At  the  trial,  a  verdict  was  found  for  the  plaintiff  in  that  action. 
•  The  defendants  moved  the  court  of  Common  Pleas  in  arrest  of  judgment,  upon 
the  ground  that  the  bond  was  void  in  law  :  but  upon  hearing  counsel  on  both 
sides  the  court  unanimously  gave  judgment  for  the  said  Margery  Nainby ; 
upon  which  the  defendants  brought  a  writ  of  error  in  the  King's  Bench,  and 
upon  argument  in  Hilary  Term  1726,  the  judgment  was  affirmed,  by  the  unani- 
mous opinion  of  all  the  judges  of  that  court.  The  defendants  then  brought 
a  writ  of  error  in  Parliament,  to  reverse  both  these  judgments.  But,  after  hear- 
ing counsel  on  this  appeal,  and  the  unanimous  opinion  of  all  the  judges  having 
been  delivered,  upon  a  point  of  law  to  them  proposed,  it  was  ordered  and 
adjudged,  that  the  judgment  of  affirmance  given  in  the  Court  of  King's  Bench, 
affirming  the  judgment  given  in  the  Court  of  Common  Pleas,  should  be  af- 
firmed. 

So,  in  the  case  of  Davis  v.  Mason,  (d)  where  the  condition  of  the  bond  was 
in  consideration  that  the  plaintiff  would  take  the  defendant  as  an  assistant 
in  his  business  as  a  surgeon,  for  so  long  a  time  as  it  should  please  the  plain- 
tiff, the  defendant  agreed  not  to  practise  on  his  own  account  for  14  years 
within  ten  miles  of  the  place  where  the  plaintiff  lived ;  the  bond  was  held 
good. 

So,  in  the  case  of  Bunn  v.  Guy(c)  it  was  determined,  that  a  contract  entered 
into  by  a  practising  attorney  to  relinquish  his  business  and  recommend  his 
clinents  to  two  other  attornies  for  a  valuable  consideration,  and  that  he  would  not 
himself  practise  in  such  business  within  certain  *limits,  and  would  permit  them 
to  make  use  of  his  name  in  their  firm,  for  a  certain  time,  but  without  his  inter- 
ference, &c.  was  valid  in  law. 

So,  in  the  case  of  Gale  and  others  v.  Reed,  (f)  where  by  indenture  between 
A.  and  B.  and  C.  dissolving  their  partnership  as  rope  makers,  A.  and  B.  cov- 


(d)  5  Term  Rep.  118.  Vide  Clerk  v.  (e)  4  East  Rep.  190. 
Comer,  Hardw.  53.  and  Sloman  v.  Walter,  (/)  9  Eaet  Rep.  80. 
1  Bro.  Ch.C.  418.  S.  P. 


*442 


442         Of  Agreements  In  Restraint  of  Trade-       [Part  II. 

enanted  to  allow  C.  during  his  life,  2s.  on  every  cwt.  of  cordage,  which  they 
should  make  on  the  recommendation  of  C.  for  any  of  his  friends  and  connec- 
tions, and  whose  debts  should  turn  out  to  be  good ;  and  that  A.  and  B.  should 
stand  the  risk  of  such  debts  incurred,  but  should  not  be  compelled  to  furnish 
goods  to  any  of  C.'s  connexions  whom  they  should  be  disinclined  to  trust.  And 
C.  covenanted  not  to  carry  on  the  business  of  a  rope  maker  during  his  life 
(except  on  government  contracts)  and  that  all  debts  contracted,  or  to  be  con- 
tracted in  his  or  their  names,  pursuant  to  the  indenture,  should  be  the  exclu- 
sive property  of  A.  and  B.,  and  that  C.  should  during  his  life  exclusively  em- 
ploy A.  and  B.  and  no  other  person,  to  make  all  the  cordage  ordered  of  him  by 
or  for  his  friends  and  connections,  on  the  terms  aforesaid,  and  should  not  em- 
ploy any  other  person  to  make  any  cordage  on  any  pretence  whatsoever.  It 
was  determined,  that  the  covenant  by  C.  to  employ  A.  and  B.  exclusively  to 
make  cordage  for  his  friends,  and  not  to  employ  any  other,  &c.  A.  and  B.  not 
being  obliged  to  work  for  any  other  than  such  as  they  chose  to  trust,  was 
not  illegal  and  void,  as  being  in  restraint  of  trade  without  adequate  consid- 
eration •  for  the  whole  indenture  must  be  construed  together,  according 
to  the  apparent  reasonable  intent  of  the  parties,  and  the  general  object  be- 
ing only  to  appropiate  to  A.  and  B.  so  much  of  C.'s  private  trade  as  they 
chose  to  give  his  friends  credit  for,  so  much  only  was  covenanted  to  be  trans- 
ferred, and  C.  was  still  at  liberty  to  work  for  any  of  his  friends  who  were  re- 
fused to  be  trusted  by  A.  and  B.  by  which  construction  the  restraint  on  C. 
was  only  co-extensive,  as  in  reason  it  could  only  be  intended  to  be,  with  the 
benefit  to  A.  and  B.  ;  and  therefore  the  restraint  on  C.  could  be  no  preju- 
dice to  public  trade. 


Chap.  II.]  Of  Contracts  for  the   Sale  of  Offices,  #c   443 


^CHAPTER   XL 


OF    CONTRACTS    AND    AGREEMENTS    FOR    THE   SALE   AND    RELIN- 
QUISHMENT OF  OFFICES,  &c. 


The  buying  or  selling  of  public  offices  is  rendered  illegal  by  the  statute  5 
and  6  Ed.  6.  c.  16.  s.  2.  and  3.,  by  which  it  is  declared,  "  that  all  bargains^ 
sales,  promises,  bonds,  agreements,  covenants,  and  assurances  for  money,  or 
other  profit,  in  consideration  of  or  relating  to  appointments,  touching  the  ad- 
ministration of  justice,  or  the  collection  of  the  revenue,  &c.  or  for  the  depu- 
tation thereof,  shall  be  void.  And  the  provisions  of  this  act  were,  by  the  stat. 
49  Geo.  3.  c.  126.,  extended  to  Scotland  and  Ireland,  and  to  all  offices  in  the 
gift  of  the  crown,  all  commissions,  civil,  naval,  and  military,  and  all  places 
and  employments  in  the  departments  and  offices  therein  particularly  mention- 
ed. But  the  7th  section  of  this  statute  contains  a  proviso  that  it  shall  not  ex- 
tend to  any  purchase  or  sale,  or  agreement  for  the  purchase  or  sale  of  certain 
offices  in  the  palace,  or  commissions  in  the  army  at  the  regulated  prices,  and 
authorized  regimental  agents  acting  without  fee.  And  the  statute  does  not 
prohibit  a  deputation  to  any  office  where  it  is  lawful  to  appoint  a  deputy,  or 
any  agreement,  &c.  lawfully  made  in  respect  of  any  allowance,  salary,  or  pay- 
ment made,  or  agreed  to  be  made,  by  or  to  such  principal  or  deputy  respec- 
tively, out  of  the  feesor  profits  of  such  office.(13i>)  The  11th  section  also 
contains  an  exception  as  to  annual  payments  out  of  the  fees  to  any  person  for- 
merly holding  the  office,  provided  such  reservation,  and  the  circumstances  un- 
der which  it  was  permitted,  is  stated  in  the  instrument  of  appointment  of  the 
person  succeeding  to  the  office. 

Upon  the  statute  of  Edward  it  has  been  determined,  that  an  agreement 
to  appoint  a  deputy  to  a  public  office  upon  the  request   of  another,  and  to  em- 


(139)  See  Lewis  v.  Knox,  2  Bibb.  435. 

54  #443 


444    Of  Contracts  for   the    Sale  of  Offices,  fyc.  [Part  II. 

power  the  latter  to  receive  the  fees  of  office,  &c.  to  his  own  use,  is  void. 
Thus  in  the  case  of  Garforth  v.  Fearon,{a)  which  was  an  *action  of  assumpsit 
for  money  had  and  received,  brought  by  the  direction  of  the  Master  of  the  Rolls, 
in  consequence  of  a  bill  filed  in  equity,  by  the  plaintiff  and  his  son,  praying 
that  the  defendant  might  be  declared  a  trustee  of  the  office  of  customer  of  Car- 
lisle, for  the  plaintiff,  for  the  benefit  of  the  son.  On  the  trial  of  the  cause  at 
the  sittings  in  Trinity  Term,  1787,  before  Lord  Loughborough  Ch.  J.  it  ap- 
peared in  evidence  that  application  was  made  to  the  Lords  of  the  Treasury  by 
the  friends  of  the  plaintiff,  to  procure  for  the  defendant  the  office  of  customer 
of  the  port  of  Carlisle.  On  the  25th  of  February  1773,  the  defendant  signed  the 
following  declaration,  "  I  do  hereby  declare,  that  my  own  name  was  made  use 
of,  in  trust  for  Mr.  John  Garforth,  on  the  application  made  to  the  Lords  of  the 
Treasury,  for  the  office  or  place,  lately  held  by  Mr.  Grape,  deceased,  in  the 
county  of  Cumberland ;  and  I  do  hereby  promise,  in  case  any  appointment 
has  been  or  is  made  thereof,  that  I  will,  upon  request,  appoint  such  deputy  or 
deputies  as  he  shall  nominate,  and  also  empower  the  said  Mr.  Garforth  to  re- 
ceive the  salary,  stipend,  wages,  and  fees  of  the  said  office  to  his  own  use." 

On  the  27th  of  February  1773,  the  defendant  was  appointed  by  patent  to  the 
office,  and  afterwards,  on  the  nomination  of  the  plaintiff,  constituted  deputies 
for  Carlisle,  Whitehaven,  and  Workington ;  but  having  received  the  profits, 
did  not  account  for  them  to  the  plaintiff,  in  consequence  of  which  the  bill  was 
filed.  A  verdict  was  found  for  the  plaintiff,  with  leave  to  move  the  court  to  en- 
ter a  nonsuit.  A  motion  to  this  effect  was  accordingly  made,  and  after  argu- 
ment at  the  bar,  the  court  dete  rmined  that  the  agreement  was  void.  And  Lord 
Loughborough  Ch.  J.  said,  "  on  full  consideration  of  all  the  arguments  used 
in  this  cause,  I  am  of  opinion  that  the  transaction  which  is  the  foundation 
of  the  action  is  illegal,  and  the  agreement  void.  This  transaction  concerns 
a  public  office,  deemed  by  law  to  be  a  place  of  public  trust,  prohibited  to  be  sold  ; 
and  even  the  deputation  of  which,  where  such  deputation  may  be  made,  can- 
not be  an  object  of  sale.  The  transaction  is,  that  Fearon  being  appointed  by 
the  recommendation  of  Garforth,  shall  not  interfere  in  the  office,  but  shall  ap- 
point such  deputies  as  Garforth  shall  nominate,  and  pay 40  him  the  profits. 
The  effect  of  this  is,  that  to  all  profitable  purposes,  and  as  to  all  the  exercise 
of  the  office,  except  as  to  signing  a  receipt  for  the  salary,  Garforth  is  the  real 
officer,  but  is  not  accountable  for  the  due  execution  of  it ;  he  may  enjoy  it  with- 
out being  subject  to  the  restraints  imposed  by  law  on  such  officers,  for  he  does 
not  appear  as  such  officer  ;  he  may  vote  at  eiections,  he  may  exercise  incon- 
sistent trades,  he  may  act  as  a  magistrate,  in  affairs  concerning  the  revenue,  he  may 
sit  in  parliament,  and  will  be  safe  if  he  remains  undiscovered.  If  extortion  be 
committed  in  the  office  by  those  appointed,  the  profits  of  that  extortion  redound  to 
him,  but  he  escapes  a  prosecution  ;  for  not  being  the  active  officer,  he  does  not 
appear    registered  upon    the   records  *of  the   Exchequer,    and    is    not   liable 


(a)  1  H.  Bl.  327.     Vide  Godolphin  v.  Tudor,    1  Bro.  P.    C.  135.     Palmer   v.  Bete,  2  Brod. 
&  Bing.  673.  S.  P. 


444  *445 


Chap.  11.]    Of  Contracts  for  the  Sale  of  Offices,  fyc.      445 

to  the  disabilities  imposed  by  the  statute  on  officers  guilty  of  extortion,  who  are 
incapacitated  to  hold  any  office  relating  to  the  revenue.  Whether  a  trust  can 
be  created  in  such  an  office,  is  for  the  consideration  of  the  court  in  which  the 
suit  was  originally  brought :  the  only  question  in  this  court  is,  whether  the  agree- 
ment springing  out  of  such  a  transaction  can  support  an  action  1  The  written 
agreement  of  the  25th  of  February  1773,  was  for  two  purposes  :  one  to  appoint 
such  deputies  as  the  plaintiff  should  name ;  the  other  to  pay  over  to  him  all 
the  profits  of  the  office.  Though  this  case  has  been  argued  very  fully  and  very 
ingeniously  by  the  counsel  on  both  sides,  I  do  not  recollect  any  argument  used 
in  support  of  the  first  promise,  namely,  to  appoint  at  the  nomination  of  another, 
deputies,  for  whom  the  person  appointing  is  in  point  of  law  answerable,  and 
whose  places  he  is  not  allowed  to  sell  or  bargain  for.  The  argument  and  doc- 
trine laid  down  in  the  case  of  Smith  v.  Cohshiil,  2  And.  55.  which  is  similar  to 
this,  are  that  if  one  part  of  the  agreement  were  bad,  no  action  could  be  main- 
tained on  any  other  part  which  might  be  good.  But  it  is  not  necessary  to  rest 
on  this  point,  because  I  am  of  opinion  that  the  agreement  is  bad  in  both  parts. 
If  it  be  without  any  consideration  in  a  court  of  law,  no  action  will  lie  upon  it ; 
it  is  but  nudum  pactum.  What  then  is  the  consideration  upon  which  this 
agreement  proceeds  1  It  is  that  Fearon  is  appointed  on  the  application  of  Gar- 
forth  in  trust  for  him  ;  this  is  the  consideration.  Now  what  is  this  but  in 
plain  terms  this  proposition  ;  viz.  that  the  public  is  abused,  and  the  king  deceiv- 
ed in  the  application  1  I  should  therefore  not  find  much  difficulty  to  conclude, 
if  there  were  nothing  more  in  the  case,  that  the  common  law  would  not  support 
an  assumpsit  on  such  an  agreement.  But  I  think  it  is  clearly  void  by  positive 
law  respecting  this  office.  The  appointment  of  any  customer  by  any  means 
contrary  to  the  stat.  12  Ric.  2.  cap.  2.  is  a  misdemeanor.  That  statute,  though 
very  ancient,  is  certainly  not  obsolete ;  it  is  the  statute  under  which  they  are 
sworn  in  the  Exchequer.  It  not  only  prohibits  the  appointment,  but  goes  on  to 
say  that  '  none  that  pursueth  by  him  or  by  others,  privily  or  openly,  to  be  in 
any  manner  of  office  shall  be  put  in  the  same  office,  or  in  any  other,'  and  the 
5  &  6  Edw.  6.  c.  16.  makes  void  all  promises,  bonds,  and  assurances,  as  well 
on  the  part  of  the  bargainer,  as  the  bargainee.  It  is  said,  that  this  was  no  sale 
of  the  office,  that  no  money  has  passed  on  the  part  of  Fearon  to  obtain  it.  But 
the  statute  does  not  stop  there.  It  is  neither  confined  in  its  expressions  nor  its 
intent.  In  the  case  where  a  person  obtaining  an  office  gives  money,  the  words 
of  the  act  are  extremely  general,  and  according  to  their  obvious  construction 
without  any  enlargement,  necessarily  require  that  all  bargains  for  money  concern- 
ing those  offices  which  are  mentioned  in  the  statute,  are  and  shall  be  prohibited. 
Now  is  it  not  clear,  that  the  plaintiff  has  bargained  with  the  defendant  ?  Would 
the  *defendant  have  had  the  office  without  that  bargain  ?  The  promise  which  is 
the  ground  of  this  action  is,  that  the  plaintiff  shall  have  all  the  profits.  By  the 
words  of  the  statute,  any  profit,  however  small,  would  have  affected  the  trans- 
action ;  but  here  there  is  a  bargain  for  the  whole.  Courts  of  law  have  very 
properly  considered  this  as  a  remedial  statute,  and  have  construed  it  liberally 
where  the  validity  of  such  a  transaction  has  been  brought  before  them.     The 

*44G 


446  Of  Contracts  for  the  Sale  of  Offices,  fyc.   [Part  II. 

case  of  Sir  Arthur   lngram{b)  has  been   cited,  and  there  it  is  clear  that  the 
transaction  was  not  immoral ;  it  was  no  otherwise  wrong  than  as  it  was  pro- 
hibited  by  a  positive   statute.     It  was  a  bargain  between  Sir  Edward  Vernon 
and  Sir    Arthur  Ingram  for  a  surrender  of  the  office  of  cofferer  of  the  house- 
hold ;  on  the  surrender  of  Vernon,  Ingram  was  appointed,   and  a  bond  given 
to  account  for  the  profits.     This  was  hulden  to    be  within  the  statute,  because 
he  had  charge  of  the   King's  money  to  pay  the  household.     In   that  case  the 
king  was  not  deceived.     The  transaction  was  public  and   notorious,  and  the 
crown  was  disposed  to  have  re-appointed  the  officer   with  a  non  obstante;  but 
the  question  being  referred  to  the  Chancellor  and  twelve  Judges,  whether  the 
king  could  by  a  non  obstante  give  the  right  of  receiving  the  appointment  to  In- 
gram :    their  opinion  was,  that  the  case  was  within   the  statute,  and  therefore 
that  Ingram  was  disabled  from  taking  the  office,  and  could  not  by  a  non  ob- 
stante be  made  capable  of  holding  it.     In  the  case  of  Godolphin  v.    Tudor • 
6   Mod.    234.   which   is  also   in   2   Salk.   251.   which   was    mentioned  in  the 
argument,  the   transaction   was   between  the   principal   and   the   deputy,   and 
the  agreement   was,  that  the   deputy  executing  the    office   should  pay  to   the 
principal    out  of  the    profits    a   certain    sum.     The    court  there   held,  where 
the     agreement    was    to    pay   out    of  the     profits,   a    certain   proportion     of 
the   profits,  it   was  not    within  the    statute ;    and  the  reason    given  is  very 
plain,  and  carries  its  own  authority  with  it,  namely,  that  the  principal  is   en- 
titled to  all  the  perquisites  and  fees  of  the  office,  and  the  deputy  to  a  recom- 
pence,    as  it  were  on  a  quantum  meruit  for  the  labour  he  has  in  the  execution 
of  it.     All  the  effect,  therefore,  of  such  an  agreement  is,  to  ascertain  the  share 
which  the  deputy  should  have  for  the   execution  of  the  office.     But  it  is  re- 
markable with  what  strictness  the  courts  have  holden  that  proposition,  and  how 
careful   they  have  been  to  guard  against  any  transaction  that  might  give  any 
colour  to  the  principal's  receiving  a  gross  sum  out  of  the  profits  of  an  office 
executed  by  a  deputy.     For  in  this  case,  as  it  is  reported  in  6  Mod.,  the   agree- 
ment was  that   Tudor  should  pay   Godolphin  200Z.    a  year,    and  it  appeared 
upon    record    that   the    profits  of   the   office    amounted  to    329/.     105.  every 
year  in   which   it  had  been  executed  by   Tudor,  but  as  the  stipulation  was 
to    pay  200/.    *a  year,  absolutely  without    any    reference  to    the  profits    of 
the   office,   the  court  thought  themselves  bound  to    give  judgment  for  the  de- 
fendant.    Now  that  was  a  transaction  perfectly  fair  ;  the  mistake  in  stating  the 
manner  of  the  agreement  was  an   innocent  one,  but  the  court  would  not  per- 
mit the  plaintiff  to   recover  on  an   agreement   where  it  was  not  stated  on  the 
agreement  itself  that  the  payment  should  be  only  of  a  portion  of  the  profits, 
not  an    absolute    one    of   the   whole.     Courts    of   Equity    in    setting    aside 
securities  supposed  to  be    valid  at  law,    have    gone  by  the    same   rule,  and 
have  been  just  as  careful  not  to  permit  by  any  construction,  any  breaches 
to  be  made  in  the  provisions  of  the  statute.     The  case  of  Lockner  v.  Strode, 
2  Chan.  Cas.  48.  was  quoted  as  a  determination,  where  the  court  of    Chancery 


K4i7 


(/>)  Co.  Lit.  231.  a. 


Chap.  11.]     Of  Contracts  for  the  Sale  of  Offices,  fyc.     447 

held  a  looser  rule  with  respect  to  giving  a  bond  for  the  payment  of  a  certain 
sum  to   the  principal    appointing  a  deputy.     But  that  case   is,  as  most  of  the 
others  are  in  the  same  book,  grossly  misreported  :  no  such  determination  was 
made,  and  both  the  state  of  the  case   and  the  decision  are   perfectly   mistaken. 
I  have  a  copy  of  it  from  Lord   Nottingham's  Notes,   from  which  it  appears 
that  the   defendant,  being  sheriff,  made  John  Lockner  his  under  sheriff,  and 
the  plaintiff  who  was  the  brother  of  John  Lockner,  gave  a  bond  as   a  tem- 
porary security  till  the  common  security  was  given.     John  gave    a  bond  in 
the  usual  form  from  an  under  sheriff  to  his  principal  for  performance   of  the 
covenants  in  the  indenture  ;  but  the  first  bond  was  not  given  up.     Strode* 
after  he  was  out  of  office  arrested  the  plaintiff  on  it,  who  was  obliged  to  give  bail 
to  Sir  Francis  Rolle,  the  succeeding  sheriff  in  600/. :  and  to  be  relieved  was  the 
object  of  the  bill.  The  defendant  pleaded  a  special  agreement,  that  the  bond  was 
to  secure  him  400/.  by  quarterly  payments  for  the  under  sheriff's   place.     This 
the  plaintiff  denied,  and   also  insisted  that  such  an   agreement  was  illegal  and 
contrary  to  the  statute  23  Hen.  6.  c.  9.     The  Chancellor  being  under  doubts,  a 
trial  was  directed,  and  the  point   reserved.     So  that  no    opinion   was   given  by 
him  on  the  validity  of  the  transaction.     The  date  of  that  case  is  also  mistaken  ; 
it  is  stated  in  the  report  to  have  been   February   9,  1680,  but   it  was    in    fact 
in  Hilary  Term,  28  Car.  2.     But  in  a  subsequent  case,  Lord  Nottingham  very 
plainly  intimated  what  would  have  been  his  opinion,  if  the  agreement  had  been 
found  good  in  law.     That  was  the  case  of  Juxton  v.  Morris,   which  is   in  the 
same  book,  and  also  misreported.     By  Lord  Nottingham's  Notes  it  appears 
that  a  bishop's  registrar  made  a  deputation  of  his  office,  rendering  thereout  90/. 
per  annum ;  the    plaintiff  exhibited  a  bill   for   an  account,  and   the   defendant 
pleaded  that  it  was  within  the  statute  of  5  &  6  Ed.  6.  and  that  there  ought  to 
be  no  account.     It  was  answered,  that  this  was  only  a  reservation  of  part  of  the 
profits,  and  the  principal  being  entitled  to  the  whole,  it  was  not  illegal  ;  which 
(says    Lord    Nottingham,)   '  seemed  specious.'       But    upon    looking  into  the 
bill  it  charged    an  express  *covenant  to    pay  90/.  a  year,  without  reference 
to    the    profits    of  the  office.       The   plea    was    therefore  allowed,    and    the 
bill  dismissed.     These  cases  connected  show,   that  the   opinion  of  the  Court 
of  Chancery  at  that  time  in   considering  how  far    these   securities  were  liable 
to  be  avoided  as  contrary  to    the  provisions  of  the    statute  was,  that  between 
principal  and  deputy  there  might  be  a  reservation  out  of  the  profits,  (though 
Lord  Nottingham    did    not    expressly    so    determine)     but   if   otherwise,  the 
security  was  clearly  bad.     In   the  case  of  Law  v.  Law,(c)   Lord  Talbot  set 
aside  a  bond  supposing  it   to  be  good  in  a  court  of  law,   the   consideration  of 
which  differed  very  little  from  the  present.     On  the  part  of  the  plaintiff,  the 
case  of  Bellamy   v.  Burroio,(d)  was  relied  on  as   an  authority  to  show  that  a 
court  of  equity  will  permit  a  trust  to  be  created  of  an  office  clearly  within   the 
statute  Ed.  6.  ;  and  on  reading  that  case  with  attention,  I  admit  it  is  a  determi- 
nation full  to  the  point  for  which  my  brother  Adair  cited  it ;  and  undoubtedly  as 


(c)  3  P.  Wins.  392.  (rf)  Talb.  Rep.  97. 

*448 


448        Of  Contracts  for  the  Sale  of  Offices,   fyc.  [Part  II; 

such  a  determination,  it  is  of  very  considerable  authority,  both  in  respect  to  the 
learning  and  the  known  integrity  of  Lord  Talbot.  But  it  is  fit  to  be  observed, 
that  in  the  same  case  there  stands  very  fully  delivered  the  opinion  of  Sir  Joseph 
Jehyll  to  the  contrary ;  and  it  rests  upon  an  opposition  between  two  very 
learned  and  upright  men.  Either  opinion  is  probable,  when  there  is  such  au- 
thority for  its  support.  I  will  not  enter  into  the  consideration  of  that  case, 
nor  is  it  necessary  to  give  an  opinion  here,  whether  a  trust  can  in  any  instance 
be  created  in  such  an  office.  I  do  not  take  upon  myself  to  say,  without  other 
consideration  than  the  present  circumstances  can  afford,  that  there  is  no  pos- 
sible case  in  which  a  trust  fit  to  be  executed  may  not  be  created  in  offi- 
ces within  the  statute  of  Ed.  6.  This  is  not  a  case  of  the  execution  of  a  trust, 
the  cognizance  of  which  is  peculiar  to  a  court  of  equity.  Perhaps  if  the 
Master  of  the  Rolls  had  fixed  on  Fcaron  the  character  of  a  trustee,  a  court 
of  law  might  not  think  itself  at  liberty  to  question  the  authority  of  the  determi- 
nation. But  the  whole  question  for  a  court  of  law  to  determine  is  simply, 
whether  there  appears  a  good  consideration  on  which  an  assumpsit  can  be 
supported  ?  And  I  am  of  opinion,  for  the  reasons  I  stated,  both  on  the  princi- 
ples of  the  common  law,  and  because  the  transaction  is  in  defiance  of  the  stat- 
utes which  have  been  made  to  guard  against  evils  of  the  same  nature,  that 
the  consideration  of  the  promise  in  this  case  is  bad  ;  that  consequently  it  will 
not  support  an  assumpsit,  and  therefore  that  a  verdict  must  be  entered  for  the 
defendant." 

So,  a  promise  to  pay  money  in  consideration  of  the  relinquishment  of  a  pub- 
lic office,  in  order  that  another  might  succeed  to  it,  is  void.  Thus,  in  the  case 
of  Parsons  v.  Thompson,(e)  which  was  an  action  of  assumpsit  on  a  special 
agreement.  Verdict  for  the  plaintiff,  subject  to  *the  opinion  of  the  Court  of  Com- 
mon Pleas  on  a  case  which  stated  in  substance,  that  the  plaintiff  was,  for  thir- 
ty years,  master-joiner  of  the  dock-yard  of  Chatham,  and  the  defendant  fore- 
man of  the  joiners.  That  the  defendant  having  a  prospect  of  succeeding  to  the 
office  of  master-joiner  (which  does  not  go  in  regular  succession,  but  is  in 
the  appointment  of  the  commissioners  of  the  navy,)  applied  to  the  plaintiff  to 
procure  himself  to  be  superannuated,  which  he  did,  on  the  following  written 
agreement  being  entered  into  by  the  defendant : — "  Agreed  on  the  29th  day  of 
March,  1785,  between  Mr.  John  Parsons,  master-joiner,  of  his  Majesty's  dock- 
yard at  Chatham,  and  John  Thompson,  foreman  of  the  joiners  of  the  aforesaid 
place  :  In  case  I  should  succeed  Mr.  Parsons  to  be  master-joiner  of  the  said 
dock-yard,  at  the  commencement  of  Mr.  Parsons'  superannuation,  then  I  do 
agree  to  allow  him  his  extra  pay  from  the  yard-books,  exclusive  of  his  super- 
annuation money,  during  his  natural  life,  &c."  The  superannuation  money 
was  an  annual  allowance  from  government.  In  1785  the  defendant  was  ap- 
pointed to  the  office.  The  bare  pay  of  the  master-joiner  is  half  a  crown  per 
day,  all  above  is  extra  pay.  There  are  two  sorts  of  extra  pay;  the  tide  extra, 
(when  the  men  work  by  the  tide  beyond  the  common  yard  hours,)    and  the 

(e)  1  H.  Bl.  322. 
*449 


Chap.  11.]  and  ReHnqtiishment  of  Offices,  449 

casual  extra,  which  includes  other  extraordinary  work.     It  is  all  denominated 
extra  pay  in  the  yard  books  without  distinction.     From  1785   to   1787  the  de- 
fendant paid  to  the  plaintiff  the  common  tide  extra,  at  the  rate  of  7    \-2d.  per 
tide  for  six   winter   months,  and  at   Is.   3d.  for  double   tides,   in   the    summer 
months,  but   not  the  casual  extra,   which  the  plaintiff  did  not  demand.     In  the 
summer  of  1787,  the  casual  extra  pay  was  much  increased  by  the  extraordina- 
ry work  performed  in  fitting  out  ships  on  the  prospect  of  an   approaching  war 
with  the  Dutch :  this  casual  extra  pay   so   increased,  the  plaintiff  claimed  by 
virtue  of  the  agreement,  but  the  defendant  refused  to  account   for   to  him  ;  and 
in  consequence  this  action  was  brought.       The  Court  were  of  opinion,  that  no 
action  could  be  maintained  on  the  agreement.     Lord  Loughborough   Ch.  J.  in 
delivering  the  opinion  of  the  Court  said,  "  Every  action  on  promises  must  rest 
on  a  fair  and  valuable  consideration,  which  it  is  for  the   plaintiff  to   make  out. 
What  is  the  consideration  stated  here  ?  That  the  plaintiff  represented  himself 
as  unfit  for  future  service,  and  entitled  to  a  pension  for  the  past.     This  he   did 
at  the  request  of  the  defendant,  on  the  promise  from  him  of  a  certain  allowance. 
Now  the  representation  was  either  true  or  false.     If  true,  there  was  no  ground 
for    any  bargain    with    the    defendant  :     the    plaintiff    did   nothing     for     the 
defendant ;     all    he   did    was   for   his  own  ease    and    advantage.        If    false, 
the  public  is  deceived,  the  pension  misapplied,   and    the    service    injured.       It 
is   not   stated   that   the   plaintiff  procured    the    appointment   for   the   defen- 
dant,   (which    would    clearly    have  been  brocage  of  office,  and  bad,)    but  that 
he  had  made  *way  for  the  appointment.     But  from  thence  no   valuable  consid- 
eration can  arise.     Had  the  transaction   passed   with  the  knowledge  of  the  ad- 
miralty, judging  of  the   case,    and   applying  at  their  discretion  the  allowance 
they  are  bound  to  make,   possibly  it  might  have   stood  fair  with  the  public :  I 
say  possibly  only  ;  to  be  sure  the  ground  of  deceit  on  the  public  would  be  done 
away.     But  this  case  rests  on   a  private    unauthenticated    agreement  between 
the  officers  themselves,  which  cannot  admit  of  any  consideration  sufficient  to 
maintain  an  action.     If  it  could  be  proved  that  it  was  to  be  measured  by  mo- 
ney, so  as  to  form  a  valuable  consideration,   it  must  be  in  respect  to  the   time 
when  it  was  made,  when  the  plaintiff  was  prevailed  upon  to  retire   in  favour  of 
the  defendant.     In  this  view  it  certainly  would  approach  very  near  to  brocage ; 
it  would  differ  very  little,  in  effect,  from  selling  the  interest  itself,  though  there 
would  be  a  difference   in   the  conduct  of  the  party  who  in  one  case  would  be 
passive,  in  the  other  active.     But  his  passive  merit,  if  I  may  use  the  expression, 
would  not  avail  him,  where  his  active  exertion  would  be  a  demerit.      The  case 
cited  from  1  Vern.  98.  I  think  may  be  supported.      It  was  the  purchase  of  a 
commission  in  the  army,  which  the  Duke  of  Ormond  refused   to  ratify,  on  the 
ground,  that  the  plaintiff  had   bought  without  the  other   party  having  leave  to 
sell,  who  had  not  bought.     I   should  rather  suspect,  from  the  usual  inaccuracy 
of  the  cases  in  Vernon,  that  the  plaintiff  got  the  commission  by  succession,  and 
set  up  this  defence  against  the  payment  of  the  bond.     There  is  something  very 
like  it  in  the  reasoning  of  the  court,  who  held  there  was  no  relief  against  the 
bond.     The  question  of  the  consideration  did  not  occur  to  them  ;  and  they  seem 
to  have  holden  that  where  commissions  were  generally  saleable,  there  was  no- 

*450 


450  Of  Contracts  for  the  Sale  [Part  II. 

tiling  unfair  in  such  a  transaction.  The  next  case  in  2  Vera.  338.  if  true,  is  a 
decision  undoubtedly  contrary  to  what  we  now  decide,  and  I  think  contrary  to 
an  evident  principle  of  law.  On  the  state  of  the  report  the  bonds  are  directly 
and  plainly  given  for  brocage  of  an  office  of  trust  and  profit,  which  is  not 
an  object  of  sale.  1  have  therefore  no  difficulty  to  say,  that  I  hold  that 
case  to  be  extremely  ill-determined,  if  the  note  of  it  be  at  all  correct. 
The  case  of  Ive  v.  Ash,  Prec.  Chanc.  199.  I  think  rightly  determined  ;  there 
was  a  purchase  of  a  commission  allowed  to  be  sold,  the  commission  was  giv- 
en up,  and  the  purchaser  wanted  to  get  rid  of  the  bargain,  and  be  free  from 
the  agreement.  He  objected  that  a  commission  in  the  marines  could  not 
be  sold ;  but  it  turned  out  upon  examination,  that  the  sale  of  such  commis- 
sions was  permitted,  not  being  looked  as  within  the  statute.  I  therefore 
hold  that  case  to  be  well  adjudged  :  for  the  question  whether  an  office  is 
saleable  or  not,  is  a  matter  of  public  regulation,  and  not  a  question  for  a 
court.  If  by  public  regulation,  right  or  wrong,  certain  offices  are  saleable, 
the  Court  cannot  set  aside  the  transaction  for  their  sale,  the  Court  is  not  to 
*make  the  regulation.  Whether  by  the  general  police  of  the  country  an  in- 
dividual office  is  saleable  or  not,  is  not  a  matter  of  law.  But  in  the  present  case 
there  is  no  ground  to  say,  that  the  defendant's  office  was  sold  under  any  reg- 
ulation, or  that  the  transaction  between  the  parties  was  carried  on  under  any 
authority,  or  with  the  consent  of  their  superiors.  This  agreement  resting  on 
private  contract  and  honour,  may,  perhaps,  be  fit  to  be  executed  by  the  parties, 
but  can  only  be  enforced  by  considerations  which  apply  to  their  feelings,  and 
is  not  the  subject  of  an  action.  The  law  encourages  no  man  to  be  unfaithful 
to  his  promise,  but  legal  obligations  are  from  their  nature  more  circumscribed 
than  moral  duties. 

So,  a  sale  of  the  command  of  a  ship,  employed  in  the  East  India  Compa- 
ny's service,  by  the  owner  thereof,  without  the  knowledge  of  the  company,  is 
illegal ;  and  the  contract  of  the  sale  cannot  be  the  foundation  of  an  action,  (f) 

So,  if  A.,  being  the  clerk,  promises  B.,  in  consideration  that  B.  will  procure 
him  to  be  rector  of  a  donative  church,  with  cure  of  souls,  to  pay  10/.  to  B.,  this 
is  no  good  consideration  to  maintain  an  action,  for  this  is  simony,  and  an  of- 
fence against  the  laws  of  God  and  man.(g-)  So,  a  promise  to  pay  a  percentage 
to  procure  for  another  a  purchaser  of  his  place  in  the  customs  is  void.  Thus, 
in  the  case  of  Stackpole  v.  Earle,(h)  which  was  an  action  of  assumpsit,  where- 
in the  plaintiff  declared,  that  whereas  the  defendant  before  and  at  the  time  of 
making  the  promise  afore-mentioned,  and  afterwards,  was  surveyor  of  the  bag- 
gage of  the  port  of  London,  and  was  greatly  desirous  of  selling  and  disposing 
of  his  said  place,  and  being  so  desirous  to  sell  and  dispose  of  the  same,  on  the 
1st  of  January,  1758,  at  Westminster,  in  the  county  of  Middlesex,  in  consid- 
eration that  the  plaintiff,  at  the  defendant's  request,  would  use  his  endeavour 
to  procure,  and  would  procure   a  proper  person  to  purchase  the  said  place   of 

(/)  Blachford  v.  Preston,  8  Term  Rep.  89.     361.     SirW.  Jones's  Rep.  341. 
{S)  Rol.  Abr.  18.  pi.  13.  Cro.  Car.  337.  353.         (h)  2  Wils.  133. 
*451 


Chap.  11-]  and  Relinquishment  of  Offices.  451 

the  defendant,  he  undertook  and  promised  to  pay  the  plaintiff  21.  for  every  100/. 
that  such  person  should  give  for  the  purchase  of  the  said  place  ;  and  the  plain- 
tiff avers  that  confiding  in  the  said  defendant's  promise  and  undertaking,  after- 
wards on  the  same  day  and  year  at  Westminster  aforesaid,  he,  at  the  defen- 
dant's request,  used  his  endeavours  to  procure,  and  by  means  thereof  on  the 
1st  of  March,  1758,  at  Westminster,  procured  one  John  Gunston,  being  a  pro- 
per person,  to  purchase  of  the  defendant  the  said  place  for  1200/.,  and  that 
the  said  Gunston  did  give  to  the  defendant  1200/.  for  the  purchase  of  the  said 
place,  whereby  the  defendant  became  liable  to  pay  to  the  plaintiff  24/.  for  the 
purchase  of  the  said  place.  There  were  also  general  counts  for  work  and  labour 
done,  &c.  Upon  the  debating  this  case  at  the  bar,  *it  was  urged  by  the  coun- 
sel for  the  plaintiff,  that  he  was  neither  a  buyer  or  seller  of  the  place  or  office, 
and  that  what  he  had  done  was  at  the  defendant's  request,  and  was  neither 
malum  in  se,  nor  malum  prohibitum,  and  therefore  he  ought  to  be  satisfied  for 
his  labour  and  trouble  ;  but  the  whole  Court  were  of  opinion,  that  it  was  malum 
prohibitum,  and  within  the  statute  of  5  &  6  Ed.  6.  cap.  16.  sec.  2.  And  though 
the  plaintiff  himself  was  neither  buyer  or  seller,  yet  this  appears  to  be  a  pro- 
mise to  pay  him  money,  to  the  intent  that  a  person  should  have  an  office  be- 
longing to  the  customs,  which  is  within  the  very  words  of  the  statute  ;  but  Mr. 
Justice  Clive  said,  he  thought  the  selling  of  offices  was  malum  in  se  at  common 
law,  and  that  if  the  statute  had  never  been  made,  he  thought  the  procuring  a 
person  to  buy  the  office  of  the  defendant  was  not  a  good  consideration  in  law 
to  raise  an  assumpsit,  (which  was  not  denied  by  any  of  the  judges,)  because  it 
was  illegal ;  as  if  a  gaoler  permits  a  prisoner  to  go  at  large  upon  his  promising 
to  satisfy  the  debt  for  which  he  is  imprisoned,  he  escapes  by  the  consent  of  the 
gaoler,  and  does  not  pay  the  debt  according  to  his  promise,  the  gaoler  brings  an 
assumpsit,  but  shall  not  recover,  because  the  consideration  was  illegal ;  for  it 
is  a  most  certain  principle,  that  every  consideration  to  ground  an  assumpsit 
upon  must  be  lawful. 

But  a  promise  by  one  of  two  candidates  for  the  office  of  under-sheriff,  in 
consideration  that  the  other  will  desist,  is  good.  Thus,  in  the  case  ot  Park  i 
v.  Brown,(i)  which  was  an  action  of  assumpsit,  whereas  the  plaintiff  was  suit- 
or to  the  sheriff  of  Middlesex,  to  obtain  the  office  of  under-sheriff'  for  such  a 
year,  and  to  be  made  under-sheriff  for  the  same  year,  and  was  very  likely  to 
obtain  the  said  place ;  for  which  the  defendant  also,  at  the  same  time, 
was  a  suitor;  that  the  defendant,  in  consideration  the  plaintiff  would  desist 
his  suit,  promised  to  the  plaintiff'  if  he  obtained  the  said  office,  and  was  made 
under-sheriff,  to  pay  to  the  plaintiff  20/.  for  such  a  gelding,  which  the  plaintiff' 
had  delivered  to  him  :  and  allegeth  in  facto,  that  he  delivered  to  the  defen- 
dant the  said  gelding  ;  and  that  the  defendant  was  made  under-sheriff,  and  exe- 
cuted the  office  for  the  said  year ;  and  that  he  had  not  paid,  &c.  Upon  non 
assumpsit  pleaded,  and  verdict  found  for  the  plaintiff,  judgment  was  given  in 
the  Common  Pleas  for  the  plaintiff;  but  a  writ  of  error   was  brought    in    the 


(0  Cro.  Jac.  612. 

*452 


452  Of  Contracts  for  the  Sale,  8fC.  [Part  II. 

King's  Bench  :  and  the  error  insisted  upon  was,  that  this  is  no  lawful  nor  val- 
uable consideration.  But  all  the  court  held,  "  That  the  consideration  was  good 
and  valuable ;  for  by  this  means  the  plaintiff  desisted  from  his  suit,  and  the 
defendant  obtained  the  said  office."     Wherefore  the  judgment  was  affirmed. 


Chap.  12]  Of  Contracts  to  Marry,  &?c.  453 


^CHAPTER  XII. 


OF  CONTRACTS  TO  MARRY,  OR  IN  RESTRAINT  OF  MARRIAGE:  AND 
OF  AGREEMENTS  TO  PAY  MONEY  IN  CONSIDERATION  OF  MAR- 
RIAGE :  AND  OF  THE  STATUTE  OF  FRAUDS  RELATING  THERETO. 


1.  Of  Contracts  to  Marry.] — If  a  man  and  woman  being  unmarried  mu 
tually  promise  to  marry  each  other,  but  afterwards  the  man  marries  another  wo- 
man, an  action  of  assumpsit  will  lie,  in  which  the  woman  shall  recover  dama- 
ges for  breach  of  such  a  contract ;  for  though  matrimonial  causes  are  regularly 
cognisable  in  the  spiritual  court,  yet  the  contract  in  such  case  being  executory, 
and  revoked  by  the  subsequent  marriage,  could  not  be  enforced  in  that  court  as 
a  contract  in  pr&senti  may  ;  and  marriage  being  an  advantage,  and  the  loss  of 
it  a  temporal  loss,  it  is  fit  that  there  should  be  a  remedy  in  the  temporal  courts, 
otherwise  there  would  be  a  failure  of  justice,  (a)  And  therefore,  in  the  case  of 
Rutter  v.  Hcbden,(b)  which  was  an  action  of  assumpsit  in  consideration  that 
the  plaintiff  would  marry  the  defendant,  he  promised  to  marry  her  :  after  ver- 
dict for  the  plaintiff,  it  was  moved  that  this  was  a  matter  ecclesiastical  upon 
which  no  action  at  law  would  lie.  But  the  Court  would  not  permit  it  to  be  ar- 
gued, and  gave  judgment  for  the  plaintiff. 

So,  in  the  case  of  Harrison  v.  Cage  and  wife,(c)  which  was  also  an  action 
of  assumpsit  on  a  special  promise  of  the  woman  before  marriage,  "  that  in 
consideration  that  the  plaintiff'  being  a  bachelor  had  on  such  a  day  and  place 
promised  to  take  her  (whilst  sole)  to  wife,  she,  whilst  she  was  sole,  &c,  prom- 
ised the  plaintiff  to  take  him  for  her  husband :"  then  he  averred  in  fact,  that  he 
had  tendered  himself  to  marry  her,  and  had  requested  her  to  marry  him,  but  that 
she  refused,  and  afterwards  married  the  defendant.  The  cause  was  tried,  and 
a  verdict  was  found  for  the  plaintiff,  damages  400/.,  the  woman  being  worth 
3000/.  when  the  plaintiff  courted  her,  and  afterwards  by  the  death  of  her  brother 
worth  double  *ihat  sum.  It  was  moved  in  arrest  of  judgment,  that  this  action 
would  not  lie  upon  the  promise  of  marriage  made  by  the  woman  ;  for  the  law 
doth  not  intend  that    the  man  is  advanced  by   marriage ;  and  therefore  such  a 


(a)  Bac.  Abr.  tit.  Assumpsit,  A.  (c)  Carth.4C7.      1  Ld.  Raym.  386.  S.C. 

(ft)   1  Lev.  147.     1  Sid.  180.  S.C. 

*453  *434 


454  Of  Contracts  to  Marry  >  [Part  IL 

promise  of  marriage  to  him  is  of   no  consideration  in  law,  and  by  consequence 
no  action  can  be  founded  thereon.     But  it  is  otherwise  where  a  man  promis- 
eth  to  marry  a  woman,  because  in  the  eye  of  the  law  marriage  is  an  advance- 
ment to  the  woman.     It  was  also  contended  that  this  promise  was  void  for  un- 
certainty, for  ther  e  was  no  certain  time  agreed  on  when  the  marriage  should  take 
effect. (140)     To  which  it  was  answered,  and  so  resolved,  per  curiam,  "That 
here  were  reciprocal  promises  ;  and  therefore  as  her  promise  to  him  was  a  good 
consideration  to  make  his  promise  obligatory,  so  by  the  same  reason  his  promise 
to  her   was  a  sufficient  consideration  to  make  her  promise  binding  in  this   case 
as  well  as    in  any  other  mutual  agreements."     And  the  Court  did  not  allow 
that  distinction  between  the  advancement  of  a  man  and  of  a  woman  in  marriage  ; 
and  that  this  was  a  good  promise,  though  the  certain  time  of  marriage  was  not 
agreed  on,  especially  since  the  plaintiff  averred,  that  he  had  offered  to  marry  her, 
and  that  she  refused,  which  in  this  case  was  necessary  to  be  done,  to  entitle  the 
plaintiff  to  this  action.     So,  in  the  case  of  Hutton  v.  Manscll,(d)  an    action  of 
assumpsit  was  brought,  laying  mutual  promises  of  marriage  between  the  plain- 
tiff and  the  defendant,  and  a  refusal  on  the  part  of  the  man,  who  was  the  defen- 
dant.    And  upon  evidence  an  express  promise  was  proved  to  have  been  made 
by  the  man,  but  none  by   the  woman.     And  per  Holt  Ch.  J.  "  If  there  be  an 
express  promise  by  the  man,  and  it  appear  the  woman  countenanced  it,  and  by 
her   actions  at  the  time  behaved  herself  so  as  if  she   agreed  to  the  matter, 
though  there  be  no  actual  promise,  yet  that  shall  be  sufficient  evidence  of  a 
promise  of  her  side."     And  he  said,  he  remembered  a  case  in  which  he  had  been 
counsel,  in  Lord  Chief  Baron  Montague 's  time,  where  it  had  been  so  ruled 
upon  evidence  against  his  client ;  and  being  then  dissatisfied  therewith,  he  put 
the  case  to  eminent  men  of  those  times,  who  all  concurred  in  opinion  with  the 
Chief  Baron. 

So,  if  an  infant  and  a  person  of  full  age  mutually  promise  to  inter-marry,  the 
infant,  although  not  bound  by  her  promise,  may,  notwithstanding,  maintain  an 
action  for  breach  of  promise  by  the  adult.  Thus,  in  case  of  Holt  v.  Ward,(e) 
the  declaration  stated,  that  it  was  mutually  agreed  between  the  plaintiff  and 
defendant,  that  they  should  marry  at  a  future  day,  which  is  past ;  and  that  in 
consideration  of  each  other's  promises,  each  engaged  to  the  other  :  notwithstand- 
ing which  the  defendant  did  not  marry  the  plaintiff,  but  had  married  another, 
which  she  laid  to  her  damage  of  4000Z.  The  defendant  pleaded  no?i  assumpsit, 
and  that  the  plaintiff,  at  the  time  of  the  promise,  was  an  infant  of  fifteen  years  of 
age.  *At  the  trial  thereof  a  verdict  was  found  for  the  plaintiff,  with  200Z.  dam- 
ages.    But  to  the  plea  of  infancy,  the  plaintiff  demurred  ;  and  the  case  was 

(«Q  6  Mod.  172.  3    Salk.  16.  S.  C.  (,)  2  Stra.  937.     Fitzg.  275. 


(140)  "Where  a  promise  of  marriage,  generally,  was  proved,  but  the  time  was  not  fixed  ; 
and  the  defendant  broke  off  all  intimacy  with  the  plaintiff;  and  on  request,  did  not  assign 
the  reason  ;  it  was  held,  that  it  might  be  left  to  the  jury  to  infer  a  refusal  on  the  part  of 
the  defendant  to  marry  her.     Willard  v.  Stone,  7  Cowen,  2_2. 

*454   *455 


Chap.  12-]     Of  Contracts  in  Restraint  of  Marriage.        455 

several  times  argued  at  the  bar ;  and  the  Court  appointed  an  argument  by- 
Civilians,  to  see  what  their  law  would  determine  in  such  a  case.  Upon  the 
argument  of  the  Civilians,  no  instance  could  be  shown  wherein  they  had  com- 
pelled the  performance  of  a  minor's  contract.  And  they  who  argued  for  the 
defendant  strongly  insisted,  that  in  the  case  of  a  contract  per  verba  de  futuro 
(as  this  was)  there  was  no  remedy,  even  against  a  person  of  full  age,  in  the 
spiritual  court  ;  but  only  an  admonition.  And  the  only  reason  why  they  hold 
jurisdiction  in  the  case  of  a  contract  per  verba  de  prasenti  is,  because  that  is 
looked  upon  amongst  them  to  be  ipsum  matrimonium,  and  they  only  decree  the 
formality  of  a  solemnization  in  the  face  of  the  church. 

Raymond  Ch.  J.  afterwards  delivered  the  resolution  of  the  Court  as  follows  : 
"  The  objection  in  this  case  is,  that  the  plaintiff,  not  being  bound  equally  with 
the  defendant,  this  is  nudum  pactum,  and  the  defendant  cannot  be  charged  in 
this  action.  Formerly  it  was  made  a  doubt  by  my  Lord  Vaughan,  (/)  whether 
any  action  could  be  maintained  on  mutual  promises  to  marry  ;  but  that  is  now 
a  point  not  to  be  disputed.  (141)  And  as  to  the  present  case,  we  should  have 
had  no  difficulty  in  giving  judgment  for  the  plaintiff,  if  we  could  have  been 
satisfied  by  the  arguments  of  the  Civilians,  that  as  the  plaintiff  was  of  the 
age  of  consent,  any  remedy,  though  not  by  way  of  action  for  damages,  could 
be  had  against  her.  But  since  they  seem  to  have  had  no  precedent  in  the  case, 
we  must  consider  it  upon  the  foot  of  the  common  law.  And  upon  that  the 
single  question  is,  whether  this  contract,  as  against  the  plaintiff,  was  absolutely 
void."  And  we  are  all  of  opinion,  that  this  contract  is  not  void,  but  only  voidable 
at  the  election  of  the  infant ;  and  as  to  the  person  of  full   age   it  absolutely 

binds."  (142) 
2.  Of  Contracts  in  Restraint  of  Marriage.] — A   promise  by  a  man 

t  o  pay  to  a  woman  a  sum  of  money  if  he  shall  marry  any  body  else  is  consid- 
ered as  a  restraint  of  marriage,  and  therefore  void.     Thus,  in  the  case  of  Lowe 
v.  Peers,  (g)  which  was  an  action  of  covenant  upon  a  marriage    contract ;  be- 
ing a  promise  under  the   defendant's   hand  and  seal  in   the  following   words  : 
"  I  do  hereby  promise  Mrs.  Catherine  Lowe,  that  I  will  not  marry  with  any  one 
person  besides  herself ;  if  I  do,  I  agree  to  pay  the  said  Catherine  Lowe  1000/., 
within  three  months,   &c."     At  the    trial,  the  plaintiff  obtained  a    verdict  for 
the  1000/.     But  it  was  afterwards  moved,  in  arrest  of  judgment,  that   this  con- 
tract was  not  valid  in  law ;  and  of  this  opinion  was  the  Court,    and   the   judg- 
ment was  accordingly  arrested.     Lord  Mansfield  Ch.  J.   said,  "  All  these  con- 
tracts ought  to  be  looked  upon  with  a  jealous  eye,  even  supposing   them  clear 
*of  any  direct  fraud.     And  they  should  be  determined  on  public    and    general 

(/)  Carter,  233.  (»•)  4  Burr.  2225. 

(141)  It  is  lawful  for  a  jury  to  infer  mutual  promises  of  marriage,   from  the  defendant's 
visits  to  the  plaintiff,  as  a  suitor,  and  his  declarations  that    he  had  promised   to  marry  her. 
Southard  v.  Rexford,  6  Cowen,  254.     After  a  promise   of  marriage  has   heen  once  broken, 
an  offer,  by  the  defendant,  to  renew  it,  is  no  defence  in  an  action  for  the  breach.  Id. 
(142)  See  Willard  v.  Stone,  7  Cowen,  22.  Hunt   v.  Peake,  5  Cowen,  475. 

*456 


456  Of  Agreements  to  Pay  Money  [Part  II. 

considerations :  engagements  of  this  description  are  liable  to  many  mischiefs, 
and  to  many  dangerous  consequences.  When  persons  of  different  sexes, 
attached  to  each  other,  and  thus  contracting  to  marry  each  other,  do  not 
marry  immediately,  there  is  always  some  reason  or  other  against  it ;  as  disap- 
probation of  friends  and  relations,  inequality  of  circumstances,  or  the  like. 
Both  sides  ought  to  continue  free  :  otherwise  such  contracts  may  be  greatly 
abused ;  as  by  putting  women's  virtue  in  danger,  by  too  much  confidence  in 
men,  or  by  young  men  living  with  women  without  being  married.  Therefore 
these  contracts  are  not  to  be  extended  by  implication."  And  Yates  Just,  said, 
"  This  agreement  is  in  restraint  of  marriage.  It  is  not  a  covenant  '  to  marry 
the  plaintiff;  but  not  to  marry  any  one  else.'  And  yet  she  was  under  no  ob- 
ligation to  marry  him.  So  that  it  restrained  him  from  marrying  at  all,  in  case 
she  had  chosen  not  to  permit  him  to  marry  her.'' 

So,  in  the  case  of  Hartley  v.  Rice,(h)  which  was  an  action  upon  a  wager- 
ing contract  for  50  guineas,  that  the  plaintiff  would  not  marry  within  six  years  : 
this  was  held  to  be  prima  facie  in  restraint  of  marriage,  and  therefore  void; 
no  circumstance  appearing  to  show  that  such  restraint  was  prudent  and  proper 
in  the  particular  case. 

3.  Of  Agreements  to  Pay  Money  in  consideration  of  Marriage  ; 
and  of  the  Statute  of  Frauds  relating  thereto.] — In  one  part  of  the 
fourth  clause  of  the  statute  of  frauds  29  Car.  2.  c.  3.  it  is  enacted,  "  that  no 
action  shall  be  brought  whereby  to  charge  any  person  upon  any  agreement 
made  upon  consideration  of  marriage,  unless  the  agreement  upon  which  such 
action  shall  be  brought,  or  some  memorandum  or  note  thereof,  shall  be  in 
writing,  and  signed  by  the  party  to  be  charged  therewith,  or  some  other  person 
thereunto  by  him  lawfully  authorised." 

Very  soon  after  the  passing  of  the  act  it  was  holden,  that  this  branch  of  it  ex- 
tended as  well  to  mutual  promises  to  marry,  as  to  an  agreement  in  considera- 
tion of  marriage.  Thus,  in  the  case  of  Philpott  v.  Wallet, (i)  which  was  an  ac- 
tion of  assumpsit,  in  consideration  that  the  plaintiff,  at  the  request  of  the  defendant, 
would  consent  to  take  him  to  be  her  husband,  the  defendant  promised  to  take 
her  to  be  his  wife ;  and  that  the  plaintiff  was  ready,  and  offered  to  take  the 
defendant  to  be  her  husband,  but  he  refused.  This  promise  was  made  without 
any  writing  ;  it  was  therefore  contended  that  it  was  void  by  the  statute  ;  but 
it  was  answered,  that  this  was  no  promise  within  the  statute,  which  was  only 
intended  of  promises  for  payment  of  money  upon  marriages,  and  not  of  promi- 
ses to  marry.  But  the  Court  resolved,  that  this  promise  is  directly  within  the 
words,  and  not  out  of  the  intent  of  the  statute  ;  because  the  promise  *is,  that 
in  consideration  the  one  would  marry  the  other,  the  other  would  marry  him, 
and  therefore  it   is  a  promise  in  consideration  of  marriage. 

This  construction  of  the   statute,   however,  was  afterwards  much  doubted, 
and  in  some  cases  denied ;  (k)   but  it  was   at  last  finally  settled,   that  mutual 


(h)  10  East.  Rep.  22.  (A)  Vide  Lord  Raym.  337. 

(i)  3  Lev.  65. 

*457 


Chap. 12.]  In  Consideration  of  Marriage.  457 

promises  to  marry  need  not  be  in  writing  by  the  statute  of  frauds.  Thus,  in 
the  case  of  Cork  v.  Baker, (I)  the  plaintiff  declared,  that  in  consideration  she 
promised  to  marry  the  defendant,  he  promised  to  marry  her  at  his  father's 
death,  who  was  since  dead  ;  but  the  defendant  refused  so  to  do,  and  had  af- 
terwards married  A.  B.  It  was  objected,  that  this  being  a  parol  promise  was 
not  good  in  law.  But,  after  argument,  it  was  held,  that  this  was  not  within  the 
statute  of  frauds  and  perjuries,  which  relates  only  to  contracts  in  consideration 
of  marriage. 

A  parol  agreement  to  pay  money,  or  make  a  settlement  in  consideration  of 

marriage,  if  not  reduced  into  writing  previous  to  the  marriage,  is  void ;  and  a 

subsequent  marriage  is  not  a  part  execution  of  such  an  agreement  to  take  it 

out  of  the  statute.     But  a  subsequent  marriage  and  settlement  has  been  held 

sufficient  to  prevent  the  statute  operating  upon  such  parol  promise,  (m) 

So,  where  A.  by  letter  promises  to  give  such  a  fortune  with  his  daughter 
to  B.,  and  B.  marries  the  daughter  on  the  encouragement  of  this  letter ;  this  is 
sufficient  to  bring  the  agreement  out  of  the  statute  of  frauds  ;  and  B.  shall  re- 
cover, because  the  agreement  is  executed  on  his  part  as  far  as  it  can  be,  and  can 
never  be  undone  after,  (n) 

Letters  from  parents,  or  persons  in  loco  parentis,  containing  promises  of  pro- 
visions, have  been  a  frequent  subject  of  adjudication  ;  and  wherever  they  have 
been  explicit  hi  their  terms,  and  the  subject-matter  of  the  promise  has  been  re- 
duced to  sufficient  certainty,  they  have  been  held  to  satisfy  the  statute.  Thus, 
in  a  case  determined  a  very  few  years  after  the  statute  was  passed,  where  a 
father  wrote  a  letter,  signifying  his  assent  to  the  marriage  of  his  daughter  with 
J.  S.,  and  that  he  would  give  her  1500/.,  and  afterwards,  by  another  letter, 
upon  a  further  treaty  concerning  the  said  marriage,  went  back  from  the  propo- 
sals of  his  first  letter  ;  and  again,  at  some  time  after,  declared  that  he  would 
agree  to  what  was  proposed  in  his  first  letter ;  the  letter  was  held  a  sufficient 
promise  in  writing,  within  the  statute  of  frauds,  and  that  the  last  declaration 
had  set  up  the  terms  of  the  first  letter  again,  (o) 

And  an  action  of  assumpsit  will  lie  upon  a  contract  or  promise  to  pay  mon- 
ey in  consideration  of  marriage.  Thus,  in  the  case  of  Robert  Browne  *and  wife 
v.  Garborough,(p)  which  was  an  action  of  assumpsit,  upon  a  promise  made  to 
the  feme  dum  sola  fuit :  the  declaration  stated,  that  whereas  a  communication 
was  between  J.  Browne,  father  of  the  plaintiff  Robert,  and  the  defendant,  cous- 
in of  the  said  Robert  Browne,  and  the  said  feme,  when  she  was  sole,  of  a  mar- 
riage to  be  had  between  the  said  plaintiffs ;  and  the  said  John  Browne  promised 
to  the  feme,  that  if  the  marriage  did  take  effect,  that  he  would  assure  to  them 
such  land,  &c. ;  and  the  defendant  did  then  promise  to  her,  that  if  J.  Browne 


(0  Stra.  34.  (o)  Vide  2  Vent.   361.  Prec.  Chan.  560. 

(m)  Montacute  v.  Maxwell,  1  P.  Wms.  618.  2  Vcm.  200.  202. 

Stra.  236.  S.  C.     See  also  1  Ves.  jun.  199.  (p)  Cro.  Eliz.,63.  Note,  indebitatus  asswmp- 

/^o20^"    r«  «i<  will  not  lie  for  money  payable  in  consid- 

(n.)  2  t,q.  Caa.  Abr.  49.  See  also  2  Vcm,  eration  of  marriage  ;  it  must  be  on  the  spc- 

322.  1  Vcs.  297.  cial  promise.    Vent.  268. 


458 


458  Of  Agreements  to  Pay  Money  [Part  II. 

did  not  perform  his  promise,  the  defendant  would  give  her  100/.,  and  alleges 
that  the  marriage  did  take  effect,  and  the  lands  were  not  assured,  &c.  upon  non 
assumpsit,  it  was  found  for  the  plaintiff.  But  it  was  moved  in  arrest  of  judgment, 
that  there  was  no  sufficient  consideration  to  ground  the  promise  ;  for  the  feme 
was  a  mere  stranger  to  the  defendant,  and  there  was  no  reason  for  him  to  give 
her  100/.  in  marriage.  But  it  was  answered,  that  there  was  a  good  considera- 
tion ;  for  it  was  alleged,  that  the  defendant  was  kinsman  to  Robert  Browne,  the 
plaintiff;  and  it  is  to  be  intended  that  by  reason  of  these  words  she  was  induc- 
ed to  marry  R.  Browne,  which  otherwise  she  would  not  have  done  ;  and  they 
directed  judgment  to  be  entered  for  the  plaintiffs  :  and  upon  a  writ  of  error 
brought,  the  judgment  was  affirmed :  for,  peradventure,  she  trusted  the  defen- 
dant rather  than  J.  Browne,  and  the  defendant  was  cousin  to  the  said  R. 
Browne,  the  plaintiff. 

So,  if  B.,  the  daughter  of  A.,  be  heir  apparent  to  C,  and  D.  promises  to  A., 
the  mother,  in  consideration  that  she  would  consent  and  agree  that  the  said  B., 
her  daughter,  should  marry  his  son,  that  he  would  give  to  the  said  A.  100/., 
upon  which  A.  consents,  and  the  marriage  takes  effect :  this  is  a  good  consid- 
eration ;  for  nature  has  given  the  power  of  disposing  to  parents,  and  in  nature 
their  children  are  bound  to  obey  them,  (p)  So,  if  A.,  in  consideration  that  B. 
will  marry  his  daughter,  assumes  and  promises  to  give  to  B.  20/.,  and  give  to 
him  twenty  French  pieces  :  this  is  a  good  promise  :  for  this,  according  to  our 
usual  speech,  shall  be  intended  French  crowns,  which  are  the  common  coin  of 
France,  and  here  known,  (q) 

So,  if  B.  promises  A.,  in  consideration  of  marriage  between  A.  and  C,  the 
daughter  of  B.,  that  he  will  pay  to  A.  100/.  at  a  time  after,  and  in  the  mean 
time  to  pay  according  to  the  rate  of  8/.  for  the  interest  thereof;  this  is  a  good 
consideration :  the  promise  being  upon  a  marriage,  and  not  for  money  lent,  (r) 
So,  if  a  man  promises  another,  in  consideration  that  he  will  marry  his  daugh- 
ter, to  give  him  as  much  as  he  hath  given  or  should  give  with  any  of  his  other 
daughters,  if  after  he  gives  such  a  *sum  with  another  of  his  daughters,  and 
dies,  an  action  upon  this  assumpsit  lies  against  the  administrator  notwithstand- 
ing it  be  collateral,  (s) 

In  Marsh  and  RainsforaVs  case(/)  there  was  a  communication  of  marriage 
between  M.  and  the  daughter  of  R.  and  of  200/.  to  be  given  with  the  daughter, 
but  they  could  not  agree  on  the  day  of  payment.  Marsh  stole  away  the  daugh- 
ter, and  married  her  without  the  knowledge  or  consent  of  the  father ;  but  after- 
wards R.  agreed  and  promised  that  in  consideration  he  had  married  his  daugh- 
ter he  would  give  him  200/.,  and  afterwards  M.  brought  an  action  of  assumpsit, 


(/>)  Mo.  595.   pi.  808.  857.  pi.  1176.  Hob.  (s)  1  Vin.  Abr  287.  PI.  3.  See  also  3Bulst. 

lO.Brownl.  18.  Hutt.  39.   1  Dan.  Abr.   47.  1  235.248.   1   Rol.  Rep.  193.433.pl.  29.  Poph. 

Vin.  Abr.  303.  143.  2  Roll.  Rep.  104.  Cro.  Jac.  417. 

(q)  Poynter  v.  Poynter,  Cro.  Car.  194.  (t)  2  Leon.  111.  Cro.  Eliz.  59.  Dy.  272.  b. 

(r)  1  Vin.  Abr.  297.  pi.  15.  2  Sid.  116.  S.  in  marg.  3  Lev.  366. 

*459 


Chap.  12.]  In  Consideration  of  Marriage.  459 

and  recovered  that  sum.  So,  in  another  like  action  of  assumpsit,  (u)  brought 
upon  a  promise  of  20/.  made  to  the  plaintiff"  by  the  defendant  in  consideration 
that  the  plaintiff,  at  the  special  instance  of  the  said  defendant,  had  taken  to  wife 
the  cousin  of  the  defendant ;  that  was  good  cause,  although  the  marriage  was 
executed  and  passed  before  the  undertaking  and  promise,  because  the  marriage 
ensued  the  request  of  the  defendant.  But  in  the  case  of  Sandhill  v.  Jenny,  (v) 
where  the  plaintiff"  declared,  that  in  consideration  that  the  plaintiff  had  formerly 
married  his  daughter  at  his  special  instance  and  request,  the  defendant  promised 
the  plaintiff  to  pay  him  every  year,  during  the  life  of  the  defendant,  10/.,  &c. 
The  plaintiff",  upon  non  assumpsit  pleaded,  had  judgment  ;  but  upon  a  writ  of 
error  in  the  Exchequer  chamber  the  judgment  was  reversed,  because  the  mar- 
riage was  executed  before  the  promise  made,  yet  the  declaration  supposes  that 
the  defendant  requested  the  plaintiff  to  the  marriage. 

So,  if  there  be  a  discourse  between  the  father  of  A.  and  B.,  in  relation  to  a 
marriage  between  the  said  A.  and  the  daughter  of  B.,  and  B.  then  affirms  and 
publishes  to  the  father  of  A.  quod  daret  ei  qui  maritaret  his  said  daughter  with 
his  consent  100/.,  and  after  A.  marries  the  daughter  of  B.  with  his  consent . 
yet  this  affirmance  and  publication  of  B.  shall  raise  no  promise  upon  which  an 
action  may  be  brought,  because  these  words  do  not  include  any  promise.^) 


(m)  Dyer,  272.  b.  pi.  32.  (u>)  1  Rol.  Abr.  6.  I.  40.  Yel.  17.  Noy.   11. 

(v)  Ibid.  272.  b.  in  marg.  1  Dan.  Abr.  26. 


5G 


THE  LAW 


OF 


CONTRACTS  AND  PROMISES. 


PART  THE    THIRD. 


OF  CONTRACTS  AND  PROMISES  BY  AND  BETWEEN  PARTICU- 
LAR PERSONS. 


CONTENTS. 
I. 

OF  Contracts  By  and  Between  Partners  ;  and  Who  may 
Be  Deemed  a  Partner  and  made  liable  to  Partnership 
Debts  and  Contracts  :  And  How  Partners  must  Sue  and 
be  Sued. 

II. 

OF  Contracts  By  and  Between  Master  and  Servant. 

III. 

OF  Contracts  By  and  Between  Principal,  Agent,  Factor, 
and  Broker  :  and  their  respective  Liabilities. 

IV. 

OF  Contracts  with  Agents  of  Government,  or  other  Public 


462        Of  Contracts  icilh  Particular  Persons.       [Part  III. 

Bodies  ;  or  with  an  Officer  in   the  Army  on  Behalf  of  a 
Regiment,  &c. 

V. 

OF  Contracts  with  Carriers,  Wharfingers,  and  Warehouse- 
men ;  and  their  Liabilities. 

VI. 

OF  Contracts  with  Husband  and  Wife  made  before  and  after 
Marriage  ;  and  of  their  respective  Liabilities  :  and  of  Con- 
tracts made  with  Persons  living  together  as  Man  and 
and  Wife. 

VII. 

OF  Contracts  with  Infants  ;  and  of  the  Liability  of  Parent 

or  Child  for  Necessaries. 


Chap.  1.]         Of  Partnership  Contracts,  Sj-c.  463 


PART  THE  THIRD. 


CHAPTER  I. 

OF  CONTRACTS  BY  AND  BETWEEN  PARTNERS  ;  AND  WHO  MAY  BE 
DEEMED  A  PARTNER,  AND  MADE  LIABLE  TO  PARTNERSHIP  DEBTS 
AND  CONTRACTS. 

A  partnership  is  a  contract  or  agreement  between  two  or  more  persons, 
to  enter  into  and  carry  on  some  lawful  trade  or  business,  or  other  adven- 
ture, on  their  joint  account  and  risk;  and  in  which  money,  skill,  and  labour 
are  to  be  employed;  and  the  profit  or  loss  divided  between  them  either  in  just 
proportions,  according  to  their  respective  shares  and  interests,  or  as  may  be 
agreed  upon.  The  legislature  has,  in  a  few  instances,  and  by  particular  acts  of 
parliament,  limited  the  number  of  persons  who  may  associate  themselves  to- 
gether in  partnership,  namely,  in  the  business  of  bankers,  (a)  and  of  coal  mer- 
chants, (b)  So,  in  marine  insurances,  and  in  lending  of  money  on  bottomree, 
an  act  of  parliament  passed  in  the  reign  of  George  the  first,  (c)  wholly  prohib- 
iting private  partnerships  in  these  concerns.  No  other  restraint,  however,  is 
put  upon  joist  adventures,  excepting  those  schemes  which  have  a  mischievous 
tendency  to  delude  and  aggrieve  the  unwary  public  ;  as  was  the  case  with  the 
infamous  South  Sea  bubble.  Indeed  we  find  that  in  the  early  pa  rt  of  the 
reign  of  George  the  first,  these  schemes  and  devices  had  come  to  such  a  height, 
as  to  call  for  legislative  interference ;  and  accordingly,  by  the  statute  6  Geo. 
I.  c.  18.,  after  reciting  the  mischievous  consequences  of  such  projects,  it  is  en- 
acted, "  that  such  undertakings  and  attempts  as  are  described  in  the  act,  and 
all  other  public  undertakings   and   attempts   tending  to  the  common  grievance 


(<r)  Vide  stats.  6  Anne   c.   22.   ^.  9.     1 J         (/>)  28  Geo.  3.  c.  53.  s.  1. 
Geo.  2.  c.  13.  s.  5.  (r )  Chap.  18.  s.  12. 

*403 


463  On  Part?iersJiip   Contracts,  and        [Part  111- 

of  his  Majesty's  subjects,  or  great  numbers  of  them,  in  their  trade,  commerce, 
or  other  lawful  affairs,  and  all  public  subscriptions,  and  other  matters  in  fur- 
therance of  such  objects,  and  more  particularly  acting  as  a  corporate  body  rais- 
ing transferable  stock,  shall  be  illegal  and  void ;  with  a  proviso,  that  the  act 
shall  not  operate  to  prevent  the  carrying  on  partnerships  as  theretofore  legally 
done." 

When  a  partnership  is  legally  formed,  all  the  members  of  the  firm  are  liable 
to  those  with  whom  they,  or  any  of  them,  may  contract  respecting  the  *joint 
concern ;    and  consequently  secret   or  dormant  partners,  when    known,  are 
equally  liable   to   third  persons ;  and  they  cannot  excuse  themselves  by  any 
private  stipulation  or  agreement  with  each  other :  for  we  shall  find  it  laid  down 
as  a  general  rule,  throughout  all  the  cases  on  this  subject,  that  all  who  partici- 
pate in  the  profits  shall  be  deemed  partners,  and  liable  to  those  who  give  credit 
to  the  firm :  we  shall  also  see,  that  a  person  may  be  made  liable  to  partnership 
debts  and  contracts,  if  he  participates  in  the  profits,  though  by  private  agree- 
ment he  is  not  to  share  in  the  loss  ;  and  even  though,  as  between  himself  and 
the  firm,  he  may  not,  in  point  of  fact,  be  a  partner  ;  for  an  agreement  to  share 
profits  alone  cannot  prevent  the  legal  consequence  of  also  sharing  losses,  for 
the  benefit  of  creditors.     Perhaps  it  may  be  difficult  to  find  an  exact  definition 
of  a  partnership  ;  but  it  has  been  always  holden,  with   some  few  exceptions, 
that  where  there  is  a  share  of  profits,  there  shall  also  be  a  share  of  losses  ;  for 
whoever  takes  a  part  of  the  capital,  or  of  the  profits  of  it,  takes  a  part  of  that 
fund  to  which  the  public  have  given  credit,  and  to  which  they  look  for  payment. 
If  there  be  no  original  capital,  the  profits  of  the  trade  are  themselves  a  capital, 
to  which  the  creditor  is  to  have  recourse,  (c)     There  are  indeed  cases  in  which 
a  man,  who  is  neither  a  partner  in  fact,  nor  participates  in  profit  or  loss,  may 
render  himself  liable  as  such,  and  be  fixed  with  partnership  contracts,   by  his 
own  improper  conduct,  either  by  allowing  his  name  to  be   used   as  one  of  the 
firm,  or  by  representing  himself  to  be  a  partner  ;  for  the  public,  who  deal  with 
a  firm,  and  know  nothing  of  the  private    arrangement   between  the  parties   en- 
gaged in  the  business,  but  who  give  credit  to  outward  appearances,  and  to  the 
conduct  of  those  who  are  actively  engaged  and  appear  to  be  jointly  concerned, 
and  who  by  their  interference  and  conduct  induce  others  to  deal  with  and  treat 
them  as  partners,  ought  not  afterwards,  when  the   creditor   comes  to   demand 
payment  from  all  of  them,  to  be  turned  round  and  told  that  some  of  the  parties 
were  not  in  partnership.     If,  indeed,  the  law  did  not  make  them  all  jointly  lia- 
ble as  partners,  it  would  be   permitting  persons  to  hold  out  to  the  public  false 
colours  to  a  very  mischievous  extent.  ((/) 

When  once  a  person  is  fixed  as  a  partner,  it  may  be  taken  as  a  general  rule, 
that  he,  and  those  who  are  acting  with  him,  are  liable  not  only  for  the  joint 
acts^of  all,  but  also  the  separate  acts  of  each,  so  far  as  they  regard  the  particular 
trade  or  concern  in  which  they  are  so  jointly    engaged  :  and  one  partner  may 


(r)  Vide  2  II.  Bl.  246.  &  2    Sir  William        (J)  Vide  2  H.  Bl.  246.  &  1  Esp.  Rep.  29. 
Black.  1000. 

*464 


Chap.  1-]  Of  the  Liability  of  Partners*  464 

pledge  the  credit  of  himself  and  co-partners  to  any  amount.     It  was  therefore 
very  truly  said  by  Lord  Kenyon  in  the  case  of  Wells  v.  Masterman,(d)  "  That 
when  a  man  enters  into  partnership  he  certainly  commits  his   dearest  rights  to 
the  discretion  of  every  one  who  forms  a  part  of  that  partnership  in  which  he 
engages."      And  in  the  *case  of  Baker  v.   Charlton,(c)  his   lordship  observed, 
"  It  is  an   imprudent  thing  for  a  man  to  enter  into  partnership  with  any  person, 
unless  he  has  the  most  implicit  confidence  in  his  integrity ;  for  I  remember," 
said  his  lordship,  "  Lord  Mansfield  mentioning  a  case  where  a  gentleman  of 
great  fortune    had  lent  a  sum  of  money  to  a  house  and  was  to  receive  interest 
according  to  the  profits  of  the   business ;  he  had  no  idea  at  the  time  that  this 
constituted  him  a  partner,  but  it  was  so   determined,   and  he  was  absolutely 
ruined,  though  he  never  intermeddled  in  the  management  of  the  business."  And 
in  the  case  of  Crawshay  v.  Maule,(f)  the  Lord  Chancellor  Eldon  said,"  If  men 
will  enter  into  a  partnership,  as  into  a  marriage,  for  better  and  for  worse,  they 
must  abide  by  it." 

These  liabilities  will  be  more  fully  considered,  as  well  as  the  general  subject 
of  this  chapter,  under  the  following  heads,  namely, 

1.  WHAT  AGREEMENT,  STIPULATION,  OR  OTHER  ACT,  WILL  CONSTI- 
TUTE A  PARTNERSHIP  OR  JOINT  DEALING,  SO  AS  TO  RENDER  A 
PERSON  LIABLE  AS  A  PARTNER  UPON  CONTRACTS  MADE  WITH 
THE  FIRM. 

2.  OF  THE  LIABILITY  OF  PARTNERS  UPON  CONTRACTS,  &c.  MADE  BY 
ALL  OR  ANY  OF  THEM  DURING  THE  PARTNERSHIP. 

3.  OF  A  CHANGE  OR  DISSOLUTION  OF  A  PARTNERSHIP,  AND  THE  LI- 
ABILITY OF  A  RETIRING  PARTNER,  EITHER  FOR  WANT  OF  PROPER 
NOTICE  OR  BY  SUFFERING  HIS  NAME  TO  BE  USED,  &c. 

4.  OF  THE  PAYMENT  OF  DEBTS  AFTER  A  DISSOLUTION  OF  PARTNER- 
SHIP; AND  OF  THE  APPLICATION  OF  SUCH  PAYMENTS. 


5.  HOW  PARTNERS  MUST  SUE  OR  BE  SUED  DURING  THEIR  PARTNER- 
SHIP, AND  AFTER  THE  DISSOLUTION  OF  THE  PARTNERSHIP  BY 
DEATH  OR  BANKRUPTCY. 


6.  OF  THE  RIGHT  OF  SET-OFF  OF  MUTUAL  DEBTS. 

7.  OF  CONTRACTS  AND  PROMISES  BY  PARTNERS  INTER  SE. 


(d)  2  Esp.  Rep.  731.  (/)  1  Swans.  Kcp.  509. 

(e)  Peake,  74. 


>465 


466  Of  Partnership  Contracts,  and        [Part  III. 


+  1  WHAT  AGREEMENT,  STIPULATION,  OR  OTHER  ACT,  WILL  CONSTI- 
TUTE A  PARTNERSHIP  OR  JOINT  DEALING,  SO  AS  TO  RENDER  A  PER- 
SON LIABLE  AS  A  PARTNER  UPON  CONTRACTS  MADE  WITH  THE 
FIRM. 

1.  Bv  a  Participation  of  Profits,  whether  in  the  shape  of  Commis- 
sion, Interest,  or  Annuity,  &c]     In  order  to  constitute  a  partnership,  and 
to  make  a  person  liable  as  a  partner,  there   must,   in  general,  be  some  agree- 
ment to  share  in  the  profits  of   a   trade   or   particular  concern.       Thus,  in  the 
case  of   Wavgh  v.    Carver,  and  others,  (g)  which  was  an   action  of  assumpsit 
for  o-oods  sold  and  delivered,  and  for  work  and  labour  done,  &c.     And  where  a 
verdict  was  found  for  plaintiff,  subject  to   the  opinion   of  the   court,  on  a  case 
which  stated,  That  on  the  24th  February,  1790,  articles  of  agreement  were  duly- 
executed  between  Erasmus  Carver  and  William  Carver  (two  of  the  defendants) 
of  the  one  part,  and  Archibald  Giesler  (the  other  defendant)  of  the  other  part,  re- 
citing, "  Whereas  the  said  Archibald  Giesler,  some  time  since,  received  appoint- 
ments from  several  of  the  principal  ship-owners,  merchants  and  insurers  in  Hol- 
land, and  other  places,  to  act  as  their  agent  in  the   several   counties  of  Hamp- 
shire, Devonshire,  Dorsetshire,  and  Cornwall ;  and  whereas   the  said  Erasmus 
Carver  and  William  Carver  have,  for  a  great  number  of  years,  been  establish- 
ed at    Gospcrl  in    the   agency  line,   under  the   firm    of  Erasmus  Carver   and 
Son,  and  hold  sundry  appointments  as  consuls  and  agents  for   the   Danish   and 
other  foreign  nations,  and  also  have  very  extensive  connections  in  Holland,  and 
other  parts  of  Europe  ;  and  whereas  it  is  deemed  for  their  mutual  interest,   and 
the  advantage  of  their  friends,  that  the  said  Archibald  Giesler  should    remove 
from  Plymouth,  and  establish  himself  at  Coices  in  the  Isle  of  Wight ;  and  they 
had  agreed,  that  each  should  allow  to  the  other  certain  portions   of  each  other's 
commissions  and  profits,  that  is  to  say,  the  said  Archibald  Giesler  doth  covenant, 
promise,  and  agree  to  pay  or  allow  to  the  said  Erastmts   Carver  and    William 
Carver,  one  full  moiety  or  half  part  of  the  commission  agency,  to  be  received  on 
all  such  ships  or  vessels,  as  may  arrive  or   put  into  the   port  of  Cowes,   and 
likewise  one  full  moiety  or  half  part  of  the  discount  on  the  bills  of  the  several 
tradesmen  employed  in  the  repairs  of  such  ships  or  vessels.  And  the  said  Eras- 
mus Carver  and  William  Carver  to  pay  or  allow  to  the  said  Archibald  Giesler, 
his  executors,  administrators,  or  assigns,  three-fifth  parts  or  shares  of  the  com- 
mission or  agency  to  be  received  by  the  said  Erasmus  Carver  and  William,  on  ac- 
count of  all  ships  and  vessels,  the  commanders  whereof  may  in  consequence  of  the 
endeavours,  interference,  or  influence  of  the  said  Archibald  Giesler,  proceed  from 
*Cowes  to  Portsmouth,  and  there  put  themselves  under  the  direction  of  the  said 
Erasmus  Carver  arid  William  Carver,   in  manner  hereinbefore  mentioned,  an  d 
likewise  one  and  one-half 'per  cent,  on  the  amount  of  the  bills  of  the  several  trades- 

(g)  2  H.  Bl.  235. 
*4G6   *467 


Chap.  1.]         Of  the  Liability  of  Partners.  467 

men  employed  in  the   repairs  of  such  .ships  or  vessels,  together  with   one-fourth 
part  of  such  sum  or  sums  as  may  be  charged  or  brought  into  account  for  ware' 
house-rent,  on  the  cargoes  of  such  ships  or  vessels,  respectively  ;  and  also  one- 
sixth  part  of  such  sum  or  sums,  as  may  be  charged  or  brought  into  account,  for 
warehouse-rent  on  the  cargoes  of  such  skips  or   essels  as  may  be  landed  at  Cowes 
aforesaid.     And  also  that  they,  the  said  Erasmus  Carver  and  William  Carver, 
their    executors,    administrators,    or  assigns,  shall   and    will,  well  and   trulyi 
pay  or  allow,  or  cause  to  be  paid  and  allowed,  unto  the  said  Archibald  Giesler* 
his  executors,  administrators,  or  assigns,  one  fourth  part  or  share  of  the  commis- 
sion or  agency  to  be  received    by  the   said  Erasmus  Carver  and  William  Carver, 
on    account  of  all  such  ships  or  vessels  that  may  arrive  or  put  into  the  port  of 
Portsmouth,  or  remain  in  the  limits  thereof,  under  the  care  and  direction  of  the 
said  Erasmus  Carver  and  William   Carver  ;  and  likewise  one-half  per  cent,  on 
the  amount  oj  the  bills  of  the  several  tradesmen  employed  in  the  repairs  of  suck 
skips  or  vessels.     And  it  is  hereby  likewise  covenanted,  that   each  party  shall 
separately  run  the  risk  of,  and  sustain  all  such  loss  and  losses,  as  may  happen  on 
the  advance  of  monies,  in  respect  of  any  ships  or  vessels,  under  the  immediate 
care  of  either  of  the  said  parties  respectively. 

In  pursuance  of  these  articles  Giesler   removed  from  Plymouth,   and  settled 
at  Cowes,  where  he  carried  on  the  business  of  a  ship-agent,  in  his  own  name, 
and  contracted  for  the  goods,  &c.  which  were  the   subject  of  the  action.     And 
the  question  was,   whether  the  defendants  were  partners  on  the  true  construc- 
tion of  the  articles  ?  The  case  was  argued  twice  at  the  bar :   and  the  Court, 
after  taking  time  to  consider  of  their  judgment,  determined  that  the  defendants 
were  partners  ;  and  consequently  jointly  liable  for  the  debt  in  question.     And 
Lord  Chief  Justice  Eyre  said  :   "  The  discussion  of  this   case  has   enabled  me 
to  make  up  my  mind,  and  removed  the   only  difficulty  I  felt,  which  was,  whe- 
ther by  construing  this  to  be    a   partnership,  we  should  not    determine,    that   if 
there  was  an  annuity  granted  out  of  a  banking-house,  to  the  widow,  for  instance, 
of  a  deceased  partner,  it  would  make  her  liable  to  the  debts  of  the  house,  and 
involve  her  in  a   bankruptcy.     But  I    think  this  case  will  not  lead  to  that  con- 
sequence.    If  the  question  were  between  A.  and  B.  whether  they  were  partners 
or  not,  it  would  be  very    well  to  inquire  whether   they  had  contributed,  and   in 
what  proportions,  stock  or  labour,   and  on  what  agreement  they  were  to  divide 
the  profits  of  that  contribution.     But  in  all  these  cases,  a  very  different  ques- 
tion arises.  The  question  is  generally,  not  between  the  parties,  as  to  what  shares 
they  shall  divide,  *but  respecting  creditors,  claiming  a  satisfaction  out  of  the 
funds  of  a   particular  house,   who  shall  be  deemed   liable   in  regard   to  these 
funds  ?     Now  a  case  may  be  stated,  in  which  it  is  the  clear  sense  of  the  parties 
to  the  contract,  that  they  shall  not  be  partners ;  that  A.  is  to  contribute  neither 
labour  nor  money,  and  to  go  still  farther,   not   to   receive  any   profits.     But  if 
he  will  lend  his  name  as  a  partner,  he  becomes  as  against  all  the  rest  of  the 
world,  a  partner,  not   upon  the  ground  of  the  real    transaction   between   them, 
but  upon  principles  of  general  policy,  to  prevent  the    frauds  to  which  creditors 

would  be  liable,  if  they  were  to  suppose  that  they  lent  their  money  upon  the 

57  *46g 


468  Of  Partnership  Contracts,  and        [Part  III. 

apparent  credit  of  three  or  four  persons,  when  in  fact  they  lent  it  only  to  two 
of  them,  to  whom,  without  the  others,  they  would  have  lent  nothing.  The 
argument  gone  into,  however  proper  for  the  discussion  of  the  question,  is  irrel- 
evant to  a  great  part  of  the  case.  Whether  these  persons  were  to  interfere 
more  or  less,  with  their  advice  and  directions,  and  many  small  parts  of  the 
agreement,  I  lay  entirely  out  of  the  case  ;  because  it  is  plain  upon  the  construc- 
tion of  the  agieement,  if  it  be  construed  only  between  the  Carvers  and  Giesler, 
that  they  were  not,  nor  ever  meant  to  be  partners.  They  meant  each  house  to 
carry  on  trade  without  risk  of  each  other,  and  to  be  at  their  own  loss.  Though 
there  was  a  certain  degree  of  control  at  one  house,  it  was  without  an  idea  that 
either  was  to  be  involved  in  the  consequences  of  the  failure  of  the  other,  and 
without  understanding  themselves  responsible  for  any  circumstances  that  might 
happen  to  the  loss  of  either.  That  was  the  agreement  between  themselves. 
But  the  question  is,  whether  they  have  not,  by  parts  of  their  agreement,  con- 
stituted themselves  partners  in  respect  to  other  persons.  The  case  therefore 
is  reduced  to  the  single  point,  whether  the  Carvers  did  not  entitle  themselves, 
and  did  not  mean  to  take  a  moiety  of  the  profits  of  Giesler's  house,  generally 
and  indefinitely  as  they  should  arise,  at  certain  times  agreed  upon  for  the  set- 
tlement of  their  accounts.  That  they  have  so  done,  is  clear  upon  the  face 
of  the  agreement:  and  upon  the  authority  of  Grace  v.  Smith(h)  he  who  takes 
a  moiety  of  all  the  profits  indefinitely,  shall,  by  operation  of  law,  be  made  lia- 
ble to  losses,  if  losses  arise,  upon  the  principle  that  by  taking  a  part  of  the  pro- 
fits, he  takes  from  the  creditors  a  part  of  that  fund  which  is  the  proper  security 
to  them  for  the  payment  of  their  debts.  That  was  the  foundation  of  the  de- 
cision in  Grace  v.  Smith,  and  I  think  it  stands  upon  the  fair  ground  of  reason. 
I  cannot  agree  that  this  was  a  mere  agency,  in  the  sense  contended  for  on  the 
part  of  the  defendants,  for  there  was  a  risk  of  profit  and  loss  :  a  ship-agent 
employs  tradesmen  to  furnish  necessaries  for  the  ship,  he  contracts  with  them, 
and  is  liable  to  them,  he  also  makes  out  their  bills  in  such  a  way  as  to  determine 
the  charge  of  commission  to  the  ship  *owners.  With  respect  to  the  commission, 
indeed,  he  may  be  considered  as  a  mere  agent,  but  as  to  the  agency  itself,  ho 
is  as  much  a  trader  as  any  other  man,  and  there  is  as  much  risk  of  profit 
and  loss,  to  the  person  with  whom  he  contracts,  in  the  transactions  with  him, 
as  Avith  any  other  trader.  It  is  true  he  will  gain  nothing  but  his  discount,  but 
that  is  a  profit  in  the  trade,  and  there  may  be  losses  to  him,  as  well  as  to  the 
owners.  If  therefore  the  principle  be  true,  that  he  who  takes  the  general  pro- 
fits of  a  partnership,  must  of  necessity  be  made  liable  to  the  losses,  in  order 
that  he  may  stand  in  a  just  situation,  with  regard  to  the  creditors  of  the  house, 
then  this  is  a  case  clear  of  all  difficulty.  For  though  with  respect  to  each 
other,  these  persons  were  not  to  be  considered  as  partners,  yet  they  have  made 

(h)  Post,  469. 
*469 


Chap.  1.]  Of  the  Liability  of  Partners.  469 

themselves  such,  with  regard  to  their  transactions  with  the  rest  of  the  world. 
I  am  therefore  of  opinion  that  there  ought  to  be  judgment  for  the  plaintiff." (143) 

So,  in  the  case  of  Bloxam  and  Fourdrinier  v.  Pell  and  Brooke, {i)  where  it 
appeared  there  was  a  partnership  for  seven  years  between  Brooke  and  Pell ; 
but  at  the  end  of  one  year  it  was  agreed  to  be  dissolved,  but  no  express  disso- 
lution was  had.  The  agreement  recited,  that  Brooke  being  desirous  to  have 
the  profits  of  the  trade  to  himself,  and  Pell  being  desirous  to  relinquish  his  right 
to  the  trade  and  profits,  it  was  agreed,  that  Brooke  should  give  Pell  a  bond  for 
2485/.  which  Pell  had  brought  into  the  trade,  with  interest  at  five  per  cent. 
which  was  accordingly  done.  And  it  was  farther  agreed,  that  Brooke  should 
pay  to  Pell  200/.  per  annum  for  six  years,  if  Brooke  so  long  lived,  as  in  lieu  of 
the  profits  of  the  trade  ;  and  Brooke  covenanted,  that  Pell  should  have  free 
liberty  to  inspect  his  books.  Brooke  became  a  bankrupt  before  any  thing  was 
paid  to  Pell.  And  this  action  being  brought  for  a  debt  incurred  by  Brooke  in 
the  course  of  trade,  Lord  Mansfield  held  that  Pell  was  a  secret  partner:  He 
said,  "  This  was  a  device  to  make  more  than  legal  interest  of  money,  and  if 
it  was  not  a  partnership,  it  was  a  crime.  And  it  shall  not  lie  in  the  defendant 
PeWs  mouth  to  say,  it  is  usury,  and  not  a  partnership." 

But  where  a  partner  (who  retires  from  the  concern)  lends  money  to  his  co- 
partner, upon  an  agreement  to  allow  legal  interest,  with  an  additional  annuity 
for  a  certain  term  of  years  ;  this  is  not  a  continuance  of  the  partnership,  even 
with  respect  to  third  persons,  provided  there  has  been  public  notice  of  the  disso- 
lution. Thus,  in  the  case  of  Grace  v.  Smith,(k)  which  was  an  action  of  as- 
sumpsit  for  goods  sold  and  delivered.  On  the  trial  a  verdict  was  found  for  the 
defendant :  and  upon  a  motion  to  set  aside  this  verdict,  De  Grey  Ch.  J.  report- 
ed, that  this  was  an  action  brought  against  Smith  alone,  as  a  secret  partner 
with  one  *Robinson  to  whom  the  goods  were  delivered,  and  who  became  bank- 
rupt in  1770.  That  on  the  30th  of  March,  1767,  Smith  and  Rob inson  en- 
tered into  partnership  for  seven  years,  but  in  the  November  afterwards  some 
disputes  arising,  they  agreed  to  dissolve  the  partnership.  The  articles  were 
not  cancelled  ;  but  the  dissolution  was  open  and  notorious,  and  was  notified  to 
the  public  on  the  17th  of  November,  1767.  The  terms  of  the  dissolution  were, 
that  all  the  stock  in  trade,  and  debts  due  to  the  partnership  should  be  carried 
to  the  account  of  Robinson  only.  That  Smith  was  to  have  back  5200/.,  which 
he  brought  into  the  trade,  and  1000/.  for  the  profits  then  accrued,  since  the 
commencement  of  the  partnership  :  That  Smith  was  to  lend  Robinson  4000/., 
part  of  this  5200/.,  or  let  it  remain  in  his  hands  for  seven  years,  at  five  per  cent. 
interest,  and  an  annuity  of  300/.  per  annum,  for  the  same  seven  years  :  For  all 


(i)  Sittings  in   the  King's  Bench,  7  Mar.     Rep.  909. 
1775.  coram  Lord  Mansfield,  cited  in  2  Bl.         (A:)  2  Bl.  Rep.  993. 


(143)  .See  Walden  v.  Sherburne,  15  J.  R.  409. 

*470 


4^0  Oj  Partnership  Contracts,  and       [Part  III. 

which  Robinson  gave  a  bond  to  Smith.  In  June  1768,  Robinson  advanced  to 
Smith  600/.  for  two  years'  payment  of  the  annuity  and  other  sums  by  way  of 
interest,  and  gratuities,  and  other  large  sums  at  different  times,  to  enable  him 
to  pay  the  partnership  debts,  Smith  having  agreed  to  receive  all  that  was  due 
to  the  partnership,  and  to  pay  its  debts,  but  at  the  hazard  of  Robinson.  That 
on  the  1st  of  August,  1768,  the  demands  of  Smith  were  all  liquidated  and  con- 
solidated into  one,  viz.  52001. ,  due  to  him  on  the  dissolution  of  the  partnership, 
1500/.  for  the  remaining  five  years  of  the  annuity,  and  300/.  for  Smith's  share 
of  a  ship  :  in  all  7,000/.  for  which  Robinson  gave  a  bond  to  Smith.  That  on 
the22d  of  August,  1769,  an  assignment  was  made  of  all  Robinson'' s  effects  to  se- 
cure the  balance  then  due  to  Smith,  which  was  stated  to  be  10,000/.  Soon  af- 
ter the  commission  was  awarded. 

The  Court  of  Common  Pleas  held,  that  these  facts  did  not  amount  to  a  part- 
nership.    Do  Grey  Ch.  J.  said  :  "  The  only  question  is,  what  [constitutes  a  se- 
cret partner  1  every  man  who  has  a  share  of  the  profits  of  a  trade  ought  also  to 
bear  his  share  of  the  loss.     And  if  any  one  takes  part  of  the   profit,  he  takes  a 
part  of  that  fund  on  which  the  creditor  of  the  trader  relies  for  his  payment.     If 
any  one  advances  or  lends  money  to  a  trader,  it  is  only  lent  on  his  general  per- 
sonal security.     It  is  no  specific  lien  upon  the  profits  of  the  trade,  and  yet  the 
lender  is  generally  interested  in   those   profits  ;  he   relies  on  them  for  repay- 
ment.    And  there  is  no  difference  whether  that  money  be  lent  de  novo,  or  left 
behind  in  trade  by  one  of  the  partners  who  retires.     And,  whether  the  terms  of 
that  loan  be  kind  or  harsh,  makes  also  no  manner  of  difference.       I  think  the 
true  criterion  is,  to  enquire  whether  Smith  agreed  to   share   the   profits  of  the 
trade  with  Robinson,  or  whether  he  only  relied  on  those  profits,   as  a  fund  of 
payment :  a  distinction  not  more  nice  than  usually  occurs  in  questions  of  trade 
or  usury.     The  jury  have  said  this  is  not  payable  out  of  the  profits  :  and  I  think 
there  is  no  foundation  for  granting  a  new  trial." 

*The  principle  adopted  in  these  cases,  but  more  particularly  in  that  of 
Waugh  v.  Carver,  was  fully  considered,  and  acted  upon  in  a  recent  case  of 
Cheap  and  others,  assignees  of  Brander  and  Barclay  bankrupts,  v.  CramondJJ) 
where  it  appeared  that  the  bankrupts,  being  merchants  in  London,  recommended 
the  defendant  to  consign  goods  to  the  house  of  Ruxton  and  Co.,  at  Rio  Janeiro, 
for  sale  ;  the  latter  were  to  remit  the  proceeds  to  the  bankrupts,  who  were  to  pay 
over  the  same  to  the  defendant.  The  bankrupts,  upon  receiving  advices  from 
Ruxton  and  Co.,  that  the  goods  were  sold,  advanced  money  to  the  defendant, 
on  account  ;  and  to  recover  which  this  action  was  brought ;  Ruxton  and  Co. 
afterwards  failed  without  remitting  the  proceeds.  It  appeared,  however,  that 
the  bankrupts  and  Ruxton  and  Co.  divided  equally  the  commission  on  the  sale 
of  all  goods  recommended  by  the  one  house  to  the  other.  Upon  this  it  was 
argued  that  the  bankrupts  were  partners  quoad  hoc  with  Ruxton  and  Co.  and 
and  that  the  receipt  of  the  proceeds  of  the  goods  was  therefore  a  receipt  by  the 

(l)  4  Barn.  &.  Aid.  UG3. 


Chap.  1.]        Of  the  Liability  of  Partners.  471 

bankrupts,  and  the  advance  by  them  to  the  defendant  was  a  payment  on  account 
for  which  they  were  liable.     In  support  of  this  proposition  the  case    of  Waugh 
v.    Carver  was  cited  and  relied  on.     And  the  judgment  of  the  Court   of  King's 
Bench  was,  that  this  agreement  constituted  a  partnership.     And    Abbot  Ch.  J. 
said,  "  We  are  all  of  opinion  that  the  present  case  cannot  be  distinguished   in 
principle  from  that  of  Waugh  v.  Carver  ;  and  our  decision   must  be   governed 
by  it.     It  is  true  that  in    that  case  a  definite  part  of  the   commission  was,    by 
agreement  of  the  parties,  to  be  deducted  as  compensation  for   the  charges    and 
expences  before  a  division  took  place,  and  also  that  each  party  was  to  share  in 
some  specified  measure  with  the  other,  in  other  parts  of  the  profits  of   their  re- 
spective business,  such  as  warehouse  rent,  and  discount  upon  tradesmen's  bills  : 
And  it  was  contended  in  this  case,  on  the  part  of  the  plaintiffs,  that  the  bank- 
rupts and  Ruxton  were  to  be  considered  as  dividing    the    gross   proceeds  only, 
and  not  the  net  proceeds  or  profits  of  each  other's  agency  or  factorage;  and 
that  a  division  of  gross  proceeds  does  not  constitute  a  partnership.     We    think, 
however,  that  the  previous  deduction  of  a  definite  part  of  the  commission   be- 
fore the  division  in  the  case  cited,  is  an  unimportant  fact.     It  cannot    have   the 
effect  in  all  cases  of  leaving  the  remainder  as  clear  profit,  because  the  expence 
and  charge  cannot  be   in  all  cases  uniformly  the  same,  but   must  vary    with 
the  particular  circumstances  of  each  transaction  ;  so  that  in  effect  a  part  only 
of  the  gross  commission  or  proceeds  of  the  agency,  and  not  the  whole,   was  to 
be  divided  in  that  case  ;  and  taking  the  definite  deducted  part  at  a  fifth,   or   any 
other  aliquot  part,  the  absent  house,   instead  of  receiving   one -half,  as    in   the 
case  at  bar,  would  *by  the  agreement  receive  two-fifths,  or  some  other   definito 
part   of  the  whole  gross  sum,  and  not  an  indefinite  part  thereof,  depending  up- 
on  the  actual  and  clear  profit  of  the  transaction.     And    although  in  the  case   of 
Waugh  v.  Carver,  the  agreement  was  not  confined  to  a  division   of  the  commis- 
sion, but  extended  also  to  the    monies   received  in    certain    other  parts   of  the 
transactions  of  the  two  houses,  yet  the  principle  of  the  decision   is  not  affected 
by  that   circumstance,   the   principle  being  that   where  two  houses   agree  that 
each  shall  share  with  the  other  the  money  received  in  a  certain  part  of  the  busi- 
ness, they  are,  as  to  such  part,  partners  with  regard  to  those  who  deal  with  them 
therein,  though  they  may  not  be  partners  inter  se." 

So,  in  the  case  of  Bosanquct  v.  Wary,(m)  where  it  was  agreed  between 
bankers,  carrying  on  business  in  copartnership  as  London  bankers,  that  neither 
of  the  partners  should  be  engaged  or  concerned  in  banking  business,  or  any 
transaction,  matter,  or  thing,  relating  thereto,  otherwise  than  upon  the  account, 
and  for  the  benefit  of  the  partnership  ;  and  one  member  of  the  firm,  with  the 
consent  of  his  partners,  became  a  partner  in  a  country  bank  ;  and  the  London 
house  was  in  the  habit  of  transmitting  weekly  to  the  country  bank,  an  abstract 
of  their  account,  and  of  striking  the  balance  half-yearly;  the  Court  of  Com- 
mon Pleas  determined,  that  the  London  house  were  partners  in  the  country 
bank. 


(m)  G  Taunt.  5!)«.  and  2  Mar.  319.  S.  C. 

*472 


472  Of  Partnership  Contracts,  and  [Part  Ilf. 

If  a  member  of  a  firm  assigns  his  interest  to  another  member  of  the  same 
firm,  either  in  trust  to  pay  him  an  annuity  for  life,  subject  to  vary  as  the  profits 
of  the  concern  vary  ;  or  in  trust  for  such  of  his  children  as  he  should  appoint  ; 
and  in  default  of  appointment  in  trust  for  the  children,  to  be  divided  amongst 
them  when  the  youngest  should  attain  21,  the  partnership  continues. («) 

2.  In  what  Cases  the  Participation  of  Profits  by  Way  of  Remu- 
neration for  Services  may  make  a  Person  liable  as  a  partner  to 
Third  Persons.] — An  agreement  that  a  broker  shall  have  for  his  own  profit, 
whatever  sum  he  can  obtain  upon  the  sales,  above  a  certain  sum,  does  not 
constitute  a  liability  as  partner  to  third  persons,  (o)  But  if  a  person,  as  a  re- 
ward for  his  labour,  choose  to  stipulate  for  an  interest  in  the  profits  of  the 
business,  instead  of  a  certain  sum  proportioned  to  those  profits,  he  is,  as  to 
third  persons,  a  partner ;  and  no  arrangement  between  the  parties  can  prevent 
it.(p)  So,  where  it  is  agreed  to  pay  a  person  for  his  labour  in  a  concern  a  given 
sum,  in  proportion  to  a  given  quantum  of  the  profits,  ithas  been  considered  to  be  set- 
tled, that  this  does  not  constitute  a  partnership  as  to  third  persons  :  but  that  it  does 
constitute  a  partnership  if  he  have  a  specific  interest  in  the  profits  themselves  as 
profits.  This  was  settled  *in  the  case  Ex  parte  Ha?nper,(q)  where  Lord  Eldon 
said  "  The  cases  have  gone  to  this  nicety  :  upon  distinctions  so  thin  that  I  cannot 
state  it  as  established  upon  due  consideration ;  that,  if  a  trader  agrees  to  pay 
another  person  for  his  labour  in  the  concern  a  sum  of  money,  even  in  proportion 
to  the  profits,  equal  to  a  certain  share,  that  will  not  make  him  a  partner  ;  but 
if  he  has  a  specific  interest  in  the  profits  themselves,  as  profits,  he  is  a  partner. 
It  is  clearly  settled,  though  I  regret  it,  that  if  a  man  stipulates  that,  as  the  re- 
ward of  his  labour  he  shall  have  not  a  specific  interest  in  the  business,  but  a 
given  sum  of  money,  even  in  proportion  to  a  given  quantum  of  profits,  that 
will  not  make  him  a  partner ;  but  if  he  agrees  for  a  part  of  the  profits,  as  such, 
giving  him  the  right  to  an  account,  though  having  no  property  in  the  capital,  he 
is,  as  to  third  persons,  a  partner."  (144) 

But  where  the  proprietor  of  a  lighter  agreed  with  a  person  by  whom  it  was 
hired,  to  share  the  profits  from  working  the  lighter,  they  are  jointly  liable  to 
third  persons  ;  but  if  the  proprietor  agree  with  a  person  who  works  the  lighter, 
that  in  consideration  of  working  it  he  should  receive  half  the  gross  earnings  ; 
there  is  not  any  joint  liability,  (r)      So,  where  the  proprietor  of  cattle  agreed 


(?i)  Ex  parte  Wilson,  Buck.  Rep.  43.  (r/)   17Vee.404. 

(o)  Benjamin  v.  Porteus,  2  H.  Bl.  590.  (r)  Dryv.  Boswell,  1  Campb.  329. 

(p)  Ex  parte  Rowlandson,  1  Rose  Rep.  91. 


(144)  Where  one  person  advances  funds,  and  another  devotes  his  personal  services  in 
the  business,  for  which  he  is  to  receive  a  proportion  of  the  profits,  a  partnership  subsists 
between  them,  botli  in  respect  of  themselves  and  of  third  persons.  Dob  v.  Hatsey,  16  J. 
R.  34.  But,  where  C.  furnished  money  to  D.  to  be  employed  in  trade,  either  by  D.  alone  or 
with  a  third  person,  the  net  profits  to  be  equally  divided  between  C.  and  D.,  and  D.  enter- 
ed into  partnership  with  B. ;  held,  that  as  between  C.  and  D.  this  transaction  amounted  only 
to  a  loan  of  money  ;  though  as  to  creditors  dealing  with  D  ,  they  would  have  been  consid- 
ered as  partners.  *  Bailey  v.  Clark,  6  Pick.  372.  See  Lowrey  v.  Brooks,  2  M'Cord,  421. 
Muzzy  v.   Wliitney,  10  J.  R.  226. 

*473 


Chap.  1.]  Of  the  Liability  of  Partners-  473 

with  the  owner  of  land  that  the  cattle  should  be  pastured  upon  the  land,  and 
that  the  profits,  after  they  were  fatted,  above  a  certain  sum  at  which  the  cattle 
were  estimated,  should  be  equally  divided  between  the  proprietor  of  the  cattle 
and  the  ow  ner  of  the  land  ;  this  is  merely  a  mode  of  paying  for  the  pasture, 
and  does  not  constitute  a  joint  liability. (s)  So,  if  a  person  make  himself  re- 
sponsible to  the  vendor  for  a  purchase  upon  an  agreement  with  the  purchaser, 
that  if  any  profit  arise  from  the  sale  he  should  have  one  half  for  his  trouble  ; 
this  does  not  constitute  a  partnership  between  the  parties,  (t)  So,  where  the 
sailors  and  captain  agreed  that  the  produce  of  the  voyage  should  be  divided  in 
certain  proportions  amongst  the  owners,  the  captain,  and  the  officers  and  sea- 
men ;  it  has  been  ruled,  that  this  does  not  constitute  a  partnership  between  the 
parties,  but  that  the  sailors  are  entitled  to  wages  in  proportion  to  the 
produce  of  the  voyage,  (w)  An  agreement  to  pay  in  lieu  of  wages,  primage,  &c. 
one-fifth  of  the  profit  or  loss  of  the  voyage  does  not  constitute  a  partnership 
with  the  captain  or  sailors.(u) 

3.  Of  unincorporated  Societies.] — The  members  of  unincorporated  soci- 
eties or  trading    companies  are  liable   to   third  persons  as  partners  ;  for  such 
companies  are   merely    partnerships.  (w)(  145)      But  when    incorporated  they 
possess  the  quality   and    privileges   attendant   upon    all  Corporations   of  not 
being  individually  liable  for  a  corporate  act.  (x)  (146J     In  the  case  of  Rex  v. 
Dodd,(y)  Lord  Ellenborough  Ch.  J.,  in  speaking  upon  the  mischiefs  attendant 
upon  unincorporated  societies  with  transferable  shares,  says,  "  But  independent 
of  the  general  tendency  of  schemes  of  the  nature  of  the  project  now  before  us  to 
occasion  prejudice  to  the  public,  there  is  besides  in  this  prospectus  a  prominent 
feature  of  mischief;  for  it  therein  appears  to  be  held  out,  that  no  person  is  to 
be  accountable  beyond  the  amount  of  the  share  for  which  he  shall  subscribe, 
the  conditions  of  which  are  to  be  included  in  a  deed  of  trust  to  be  enrolled. 
But  this  is  a  mischievous  delusion."     And  Lord  Eldon  says  in  Carlen  v.  Druryy 
just  cited  in  note(w?),  "  I  hold  it  to  be  clear  that  each  individual  is  at  law  answer- 
able for  the  amount  of  the  whole  debts  in  the  concern." 

4.  Of  a  Sub-division  of  profits.] — A   sub-agreement  between  a  member 
of  a  partnership  firm  and  a  stranger,  to  share  in  his  individual   profits  arising 


(s)    Wlshw.  Small,  Ibid.  331.  n.  (to)   Carlen  v.  Drury,  18  Ves.  157. 

(t)  Htskelh  v.  Blanchard,  4  East  Rep.  144.  (x)  Beaumont   v.    Meredith,    3   Ves.     and 

(it)   Wilkinson  v.  Fraser,  4  Esp.  Rep.  182.  Beame  Rep.  160. 

(v)  Mair  v.  Glennie,  4  Maule  &  Sel.  240.  (y)  9  East  Rep.  516. 


(145)  By  articles  of  agreement  entered  into  by  an  association  of  persons,  for  the  purpo- 
ses of  marine  insnrance,  it  was  stipulated,  that  each  member  should  bear  his  proportion  of 
the  losses,  without  any  negative  words  that  they  should  not  be  liable  for  more,  in  case  of 
the  insolvency  of  any  of  them  ;  this  was  held  to  constitute  an  ordinary  partnership  ;  and 
that  the  members  were  bound  in  solido,  each  for  the  whole  ;  not  only  as  to  strangers,  but  as 
to  members  of  the  association,  who  had  procured  insurance.     Shubrick  v.  Fisher,  2  Des.  148. 

(146)  The  stockholders  of  the  North  River  Steamboat  Company,  being  vested  with  corpo- 
rate powers,  rights  and  privileges,  arc  not  a  copartnership ;  but  the  parties  are  tenants  in 
common  of  the  property,  and  franchises  belonging  to  the  corporation.  Livingston  v.  Linch, 
4  J.  Ch.  R.  573. 

#474 


474  Of  Partnership   Contracts,  and        [Part  II [. 

from  the  firm,  does  not,  as  it  should  seem,  rentier  the   stranger  liable  to  third 
persons  as  a  partner  in  the   firm,  (z) 

5.  What  shall  constitute  a  Partnership  in  a  particular  Purchase 
or  Adventure,  &c] — In  order  to  constitute  a  partnership  in  a  partic- 
ular purchase  there  must  either  be  a  joint  undertaking-  to  pay,  or  an  agreement 
to  share  in  the  profit  and  loss.  This  point  was  determined  in  the  case  of 
Hoare  and  others  v.  Dawes  and  another,  (a)  which  was  an  action  for  money  lent 
and  advanced.  The  facts  of  the  case  appeared  to  be  as  follow  :  the  plaintiffs, 
who  were  bankers,  had  advanced  a  sum  of  money  on  certain  tea-warrants  of 
the  East  India  Company  to  Conlencin,  a  broker,  who  deposited  the  tea-warrants 
with  the  plaintiffs  as  a  security,  and  also  gave  them  his  note  of  hand  for  the  sum 
advanced.  He  had  been  employed  by  a  number  of  persons,  of  whom  the  defen- 
dants were  two,  to  purchase  a  lot  of  tea,  at  the  East  India  Company'' s  sale,  of 
which  they,  (together  with  himself,)  were  to  have  separate  shares,  the  lots  be- 
ino-,  in  general,  too  large  for  any  one  dealer.  The  practice  at  such  sales  is,  for 
the  company  to  give  a  warrant  or  warrants  to  the  broker  or  purchaser,  for  the 
delivery  of  the  quantity  of  tea  purchased,  on  payment  being  made.  At  the 
time  of  the  sale  251.  per  cent,  is  advanced,  and  is  forfeited  unless  the  whole 
is  paid  on  the  third,  which  is  the  last  day  of  payment.  If  paid  sooner,  allow- 
ance is  made  for  prompt  payment.  The  warrants  are  often  pledged,  and  mon- 
ey raised  upon  them ;  generally  considerably  less  than  the  supposed  value  of 
the  tea.  It  happened,  however,  in  this  instance,  between  the  time  of  the  deposit 
of  the  warrants  with  the  plaintiffs,  and  the  time  when  the  payment  was  to  be 
made  at  the  India  House,  that  the  value  of  the  tea  sunk  so  much  *as  to  be  con- 
siderably under  the  amount  of  the  sum  advanced.  The  broker,  in  the  mean 
time,  had  become  a  bankrupt,  and  had  informed  the  plaintiffs  who  his  employers 
were,  all  of  whom,  except  the  defendants,  were  since  either  dead,  or  become 
bankrupts.  The  shares  of  the  defendants  were  to  be  two-sixteenths  of  the 
whole  lot.  The  ground  of  the  action  was,  that  all  the  employers  of  the  brok- 
er were  to  be  considered  as  partners,  and  jointly  and  severally  liable  for  the 
whole.  The  defendants  owed  nothing  upon  their  own  two-sixteenths.  There 
was  not  any  joint  concern  in  the  re-disposal  of  the  tea.  The  defendants  produc- 
ed several  bankers  and  brokers,  (of  whom  Contencin  was  one,)  who  said, 
they  had  had  frequent  transactions  of  this  sort,  (it  being  a  very  usual  specula- 
tion,) and  they  always  understood,  that  the  only  security  was  the  pledge,  and 
the  personal  security  of  the  broker,  unless  where  the  principals  were  enquired 
after,  and  declared,  which  was  very  rarely  done.  That,  as  the  practice  was 
to  advance  considerably  under  the  supposed  value  of  the  tea,  and  it  was  also 
usual  to  stipulate,  that,  if  the  money  was  not  repaid  within  a  certain  time,  the 
lender  might  sell,  the  warrant  was  of  itself  a  general  and  sufficient  security. 
Contencin  said,  that  tea-warrants  were  considered  as  cash,  and  passed  by  de- 
livery.    On  the  other  side,  in  answer  to  this  evidence,  (the  plaintiffs  having,  at 


0)  Ex  parte  Barrow,  2  Rose  Rep.  254.  (a)  Doug.  371. 

*475 


Chap.    I.]  Of  the  Liability  of  Partners.  475 

first,  rested  their  case  on  the  fact,  that  there  were  persons  hehind  the  curtain, 
for  whom  the  broker  acted,)  two  witnesses  were  called  :  one  of  them,  one  Car- 
tony,  a  tea-dealer,  swore,  that  a  broker  had  once  borrowed  some  money  for  him 
on  tea-warrants,  from  the  plaintiffs,  and  that  the  value  of  the  tea  having  fallen 
under  the  sum  advanced,  and  the  broker  having  failed,  he  had  paid  the  diffe- 
rence, considering  himself  as  liable.  The  other  was  a  person  who  had  also 
dealt  in  tea  and  in  loans  of  this  sort,  and  he  swore,  that  his  idea  had  always 
been  that  the  persons  behind  the  curtain  were  liable  ;  but,  upon  cross  examina- 
tion, he  said,  he  never  knew  any  loss  happen,  nor  any  demand  actually  made 
on  the  broker's  employers. 

The  Court  of  King's  Bench,  upon  these  facts  being  stated,  were  of  opinion 
that  they  did  not  constitute  a  partnership.  And  Bailor  Just,  said,  "  This  is  a 
very  plain  case.  The  plaintiffs  had  no  reason  to  consider  the  broker  as  a  part- 
ner with  the  other  persons,  for  though  he  had  a  share,  he  did  not  act  or  appear 
as  a  partner.  Nor  were  they  partners  as  among  themselves.  They  had  never 
met  or  contracted  together  as  partners.  If  this  transaction  were  sufficient  to 
constitute  a  partnership,  a  broker  would  have  it  in  his  power  to  make  500  per- 
sons partners,  who  had  never  seen  or  heard  of  one  another,  or  might,  at  his 
pleasure,  convert  his  principals  into  partners,  or  not,  without  any  authority  from 
them,  by  taking  joint  or  separate  warrants." 

So,  where  one  person  agrees  to  buy  a  quantity  of  goods,  and  to  let  others 
have  a  certain  proportion  of  them,  he  alone  is  answerable  ;  such  a  transaction 
being  considered  a  mere  sub-contract,  and  not  a  partnership.  *Thus,  in  the 
case  of  Coope  and  others  v.  Eyre  and  others, (b)  which  was  an  action  of  as- 
sumpsit, brought  by  the  plaintiffs  as  owners  of  a  Greenland  ship,  called  the 
Earl  oj  Chatham,  against  the  defendants,  as  partners,  on  an  agreement  to  pur- 
chase oil,  the  cargo  of  a  ship.  It  appeared  that  on  the  24th  August,  the  de- 
fendants, Eyre,  for  himself  and  partners,  (who  were  Atkinson  and  Walton, 
general  merchants)  Hattersley,  for  himself  and  Stephens,  who  were  oil  mer- 
chants, and  Pugh,  for  himself  and  son,  who  were  also  oil  merchants,  agreed  to 
purchase  jointly  as  much  oil  as  they  could  procure,  on  a  prospect  that  the  price 
of  that  commodity  would  rise  ;  that  Eyre  should  be  the  ostensible  buyer,  and 
the  others  share  in  his  purchase  at  the  same  price  which  he  might  give.  Hat- 
tersley and  Co.  were  to  have  one-fourth,  Pugh  one-fourth,  and  Eyre  and  Co. 
the  remaining  moiety  ;  that  they  bought  large  quantities  of  oil  belonging  to 
other  ships  and  other  traders  besides  the  plaintiffs,  in  the  name  of  Eyre  and 
Co.  ;  that  Hattersley  and  Pugh  occasionally  came  forwards,  and  gave  direc- 
tions as  to  the  delivery  of  the  oils,  and  otherwise  interfered  in  the  transaction, 
and  also  made  many  declarations,  "  that  they  were  all  jointly  interested  in  the 
different  purchases,  and  that  there  was  a  general  concern  between  them." 
The  evidence  as  to  this  point  was  in  substance  as  follows  :  Garforlh,  the  bro- 
ker, proved  the  contract,  signed  by  Eyre,  for  himself  and  Co.  ;  general  orders 


(b)   1  H.  B!.  37. 
53  *47G 


476  Of  Partnership  Contracts,  and  [Part  111. 

from  Eyre  only,  to  purchase  any  quantity  of  oil  which  might  offer.     Hatterslcy 
and  Push  told  him  they  were  to  have  a  part  of  what  was  purchased  in  the  firm 
of  Eyre  and  Co.,  and  that  they  were  jointly  concerned.     They  went  to  receive 
a  cargo  sold  by  Thwaites,  at  Blackwall.       Thwaites,  who  had  also  sold  oil  to 
the  defendants,  proved  that  Hatterslcy  said,  "  It  is  all  the   same  whether  Eyre 
or  I  buy  it ;  it  is  the  same  concern  ;"  and  that  Pugh  said,  "  Hatterslcy  and  I 
am  concerned  ;"  that  they  attended  to   see   the  oil   guaged  :     Strickland,  who 
had  the  care  of  Greenland  dock,  proved  that  Hatterslcy  and  Pugh  said,  "  We 
have  purchased  your  oil ;''  that  on  failure  of  Eyre  and  Co.,   Pugh  sent   an  or- 
der not  to  deliver  the  oil  of  the  ship  Britannia,  which  had  been  purchased  by 
Eyre  and  Co.,  and  had  the  cellars  locked.       Kilbington   sold  oil  to  Eyre    and 
Co.  by  Garforth  the  broker,  delivered  to  Hatterslcy,  who  gave  in  payment   a 
bill   accepted  by  Eyre  and  Co.,  and  his  own  note,  to  indemnify  the   witness  in 
making  an  indorsement.       Captain    Hastings  sold  oil  to   Eyre  and  Co.  by  the 
same  broker,  for  which  Pugh  signed  an  agreement.    Captain  Bowson  also  sold 
oil  by  Garforth  to  Eyre  and  Co.,  for  which  Pugh  gave  a  receipt ;    and  being 
asked,  whether  the  buyers  were  responsible  persons,    told  the  witness   he  was 
safe,  saying,  "  I  am  concerned,    Hatterslcy  is  concerned,  and  there  is  a  house 
at  Norwich  which  can  buy  us   all.''     Pugh  afterwards  repeated  this  in  the  pre- 
sence of  Hatterslcy,  who  acknowledged  it  to  be  *true.     Phelps  proved  that  he 
was  agent  to  sell  oil  for  a  Mr.    Ycomans,  and  not  trusting  to  Eyre  only,  whom 
he  considered  as  a  mere  speculator,  required  the  names  of  the  others  concern- 
ed to  be  given  in,  upon  which  Garforth  the   broker  gave  in  the  names  of  Hat- 
tershy and  Co.      On  the  part  of  the  defendants,  it  was   insisted   that  the  con- 
tract for  sale  was  made  between  the  plaintiffs  and  Eyre  and  Co.  only,  and  that 
the  agreement  which  the  defendants  entered  into  between  themselves  was  only 
a  sub-contract,  and  did  not  constitute  a  partnership.     Lord  Loughborough   Ch. 
J.,  after  declaring  his  opinion,  (that   as   the  defendants    did  not  appear  to  have 
been  jointly  concerned,  further  than  the  purchase  of  the  oil,  they  had  not  such 
a  joint  interest  in  the  profits  and  loss  as  the  law  made  necessary  to  a  partner- 
ship,) directed  a  verdict  to  be  found   for   them,   which   was  accordingly  done. 
But  the  plaintiff's  counsel    afterwards   moved   for  a  rule   to  show  cause  why  a 
new   trial  should  not  be  granted.     In  support  of  the  rule  they  admitted  that  a 
participation  of  profit  and   loss   was  necessary  to  constitute  a  partnership,  and 
argued  that  this  was  a  contract  of  that  nature.     Whether  the  agreement  be  to 
divide  the  goods  themselves  at  a  given  time,  or  the  produce  on  the  sale  of  them, 
each  party  runs  the  same  risque,  and    each   has  his  share  of  profits  and  Joss, 
either  in  the  increased  or   decreased  value  of  the   goods,  or  the  increased  or 
decreased  price  for  which  they  might  actually  be   sold.     It  could  not  be  a  sub- 
sale  to  Hatterslcy  and  Pugh,  because  each  was    to  have  a  share   on   the   same 
terms  as  Eyre  and  Co.  purchased.      But  Eyre  and  Co.  were  merchants,   and 
merchants    never  buy  to  sell    again  at    prime   cost.  Hatterslcy    and  Pugh  must 
therefore  be  said  to  have  shared  originally  in  these  barg-aiiis,  and   not  to  have 
*477 


Chap.  1.]  Of  the   Liability  of  Partners.  477 

purchased  any  second  part  of  them.     The  spirit  of  buying  and  selling  is  gain : 
the  spirit  of  partnership  is  mutual  participation  of  gain. 

The  majority  of  the  Court  determined,  that  this  transaction  was  not  a  part- 
nership. And  Heath  Just,  said,  "  The  question  for  the  determination  of  the 
Court  is,  whether  the  contract  made  with  the  plaintiffs  is  so  far  binding  on  the 
defendants,  Pugh,  Hattersley,  and  Stephens,  as  to  make  them  liable  on  the  fail- 
ure of  Eyre  and  Co.  V  If  this  contract  may  be  considered  independently  of 
the  other  contracts  given  in  evidence,  there  could  be  little  doubt.  Eyre  and  Co. 
employ  Garforth,  their  broker,  to  buy  oil,  and  it  is  agreed  that  the  other  defen- 
dants shall  have  aliquot  parts  when  the  commodity  is  purchased.  This  is  a 
sub-contract.  By  a  sub-contract  I  mean  a  contract  subordinate  to  another 
contract,  made  or  intended  to  be  made,  between  the  contracting  parties  on  one 
part,  or  some  of  them  and  a  stranger.  Eyre  and  Co.  are  the  only  purchasers 
known  to  the  plaintiffs  ;  entire  credit  was  given  to  them  alone.  Pugh,  Hatters- 
ley, and  Stephens  can  be  liable  only  in  the  event  of  a  concealed  partnership, 
on  this  principle,  "  that  the  act  of  one  partner  binds  all  his  co-partners,  on 
account  of  the  communion  of  profit  and  *loss."  In  truth,  they  were  not  part- 
ners, inasmuch  as  they  were  only  interested  in  the  purchase  of  the  commodity 
and  not  in  the  subsequent  disposition  of  it.  Great  reliance  has  been  placed 
on  this  being  a  joint  concern,  and  a  joint  speculation.  It  is  so  between  the 
defendants,  but  the  contracts  made  with  the  other  vendors  are  different.  A 
contract  made  between  A.  and  B.  cannot  be  given  in  evidence  to  explain  a  con- 
tract made  between  A.  and  C.  It  is  res  inter  altos  acta.  In  fact,  the  defen- 
dants have  pledged  themselves  explicitly  with  other  persons  in  a  different  man- 
ner. The  contracts  made  with  other  merchants  are  not  admissible  evidence  in 
this  cause,  except  to  prove  a  fraud,  if  the  facts  had  gone  that  length ;  namely, 
that  the  house  of  Eyre  and  Co.,  as  a  failing  house,  was  to  stand  forwards, 
in  order  to  protect  the  other  defendants,  who,  by  such  means,  might  have 
the  benefit  of  the  speculation,  if  it  proved  fortunate,  without  sustaining  any 
loss  in  the  event  of  its  failing.  No  such  evidence  has  been  adduced  ;  on  the 
contrary,  it  appears  that  the  objection  made  by  the  other  vendors  to  the 
firm  of  Eyre  and  Co.  was,  "  that  they  were  unknown,  and  new  i?i  the  trade.'''' 
No  detriment  from  this  decision  can  arise  to  trade,  or  affect  the  credit  of  mer- 
chants ;  for  it  behoves  every  contracting  party  to  consider  the  responsibility  of 
the  persons  with  whom  he  contracts,  and  he  has  also  the  resource  of  a  dormant 
partnership,  if  any  such  exist  and  can  be  proved.  For  these  reasons  I  am  of 
opinion  that  the  rule  ought  to  be  discharged."  And  of  this  opinion  were  Mr. 
Just.  Gould  and  Lord  Jjoughborough.  But  Mr.  Just.  Wilson  differed  in  opin- 
ion with  the  rest  of  the  Court. 

So,  in  another  case,(c)  where  A.  having  neither  money  nor  credit,  offers 
to  B.  that  if  he  will  order  with  him  certain  goods  to  be  shipped  upon  an  adven- 
ture, if  any  profit  should  arise  from  them,  B.  should  have  half  for  his  trouble  ; 


(c)  Ileskelk  v.  Blanchard,  l  East  Hep.  144. 

*478 


478  Of  Partnership   Contracts,   and         [Part 111. 

B.  having  lent  his  credit  on  this  contract,  and  ordered  the  goods  on  their  joint 
account,  which  were  furnished  accordingly,  and  afterwards  paid  for  by  B.  alone  ; 
it  was  holden  that  he  was  entitled  to  recover  back  such  payment  in  assumpsit 
against  A.,  who  had  not  accounted  to  him  for  the  profits.  Loid  Ellenboroug  h 
Ch.  J.  said,  "  The  distinction  in  Wai/^/i  v.  Carver, (d)  applies  to  this  case. 
Quoad  third  persons  it  was  a  partnership  ;  for  the  plaintiff'  was  to  share  half 
the  profits.  But  as  between  themselves,  it  was  only  an  agreement  by  way  of 
compensation  for  the  plaintiff's  trouble." 

If  several   persons  agree  in  an  adventure  to  the  East  Indies,  and  to  provide 
a  cargo   of  goods  which  shall   in  the  judgment  of  the   majority   be  proper   for 
the  voyage  ;  and  permission  is  given  to  the  ship's  husband  to  ship  on  the  joint 
account  as   many   goods  as  he  may   think  fit ;  such  goods  being  first    approved 
by  a  majority  of  the  persons   concerned  in   the   adventure  as  proper  for   the 
voyage,  and  such  ship's   husband  shall  *share  a  proportionate   profit  and   loss 
with  the  respective  adventurers ;  and  it  is  afterwards  agreed,  that  each  party  is 
to  hold  no  other  share  or  proportion  in  the  said  concern  than   the  amount  of 
what  each  separately  orders  and  ships  :   and  that  the  orders  given  for  the  cargo 
and  outfit  of  the  ship  are  to  be  separately  paid  ;  and  that  one  is  not  bound  for 
any  goods  or  stores  ordered  or  shipped   by  the  other,  and  that  the  supercargo 
shall  have  free  liberty  to  ship  what  goods  are  suitable  to  the  voyage,  over  and 
above  the  ship  and  outfit,  leaving  room  for  those  ordered  by  the  adventures  ; 
and  that  the  ship  be  made  over  in  trust  for  the  general  concern  :  if  the  super- 
cargo afterwards   purchase  goods  for  part  of  the  cargo,  and  the  ship  sail  with 
the  goods  so  purchased  as  part  of  the  cargo,  and  with  other   goods;  the  lia- 
bility for  such  goods  is  only  the  separate  liability  of  the    supercargo,  [e)     And 
Lord  Kenyon  Ch.  J.  said,  "  At  the  time  that  this  copper  was  furnished,  Pearce, 
the  ship's  husband,  stood  in  no  relation  whatever  with  the  other  persons  ;  but  he 
alone  bought  the  copper  in  his  own  name,  without  carrying  to  market  the  name 
of  any  other  person  but  his  own.     Suppose  the  plaintiff'  had  brought  an  action 
for  this  copper  the  instant  it  was  delivered  on  board,   against  whom  must  the 
action  have  been  brought  1  Pearce  only  ;  for  he  alone  was  answerable  at  that 
time.     I  cannot  therefore  see  how  it  can  be  said  that  these  goods  which  were 
sold  to  Pearce  only,  and  on  his  sole  credit  and  account,  were  sold  and  delivered 
on  the   partnership  account.     Afterwards,   indeed,    these    defendants  were  to 
gain  or  lose  by  the  joint  cargo  ;  when  the  other  goods  were  brought  in,  the  part- 
nership arose  ;  but  each  was  to  bring  in  his  own  particular  stock.     But  in  this 
case  I  think   that  the  question  stops  short  of  affecting  the  defendants  ;  and  1 
cannot  see  how  the  plaintiff  can  have  a  right  to  call  on  the  defendants  as  part- 
ners for  the  value  of  these  goods  on  a  supposed  contract,  when  the  real  contract 
between  the  buyer  and   seller  was   consummated  before   the  joint   risk  began. 
Suppose  several  persons  agree  to  open  a  banker's  shop,  and  it  was  agreed  that 
each  partner  should  bring  into  the  house   a  certain  sum  of  money  as  his  share, 


{<')  Ante,  146,  (?)    SaviUe  v.  Robertson,  1  Term  Rep.  720. 

*H9 


Chap.  1]  Of  the,  Liability  of  Partners.  479 

it  could  not  be  contended,  that  if  one  of  them  were  to  borrow  money  for  his 
share,  all  the  others  would  be  liable  for  it."  But  in  the  case  of  Gouthwaite  v. 
Duckworlh,(f)  it  was  determined,  that  if  a  creditor  having  been  jointly  con- 
cerned with  his  debtor,  agree  with  such  debtor  to  be  jointly  and  equally  con- 
cerned in  an  adventure  abroad,  and  that  such  debtor  shall  purchase  and  pay  for 
goods  for  the  adventure,  and  the  returns  shall  be  made  to  the  creditor  in  liqui- 
dation of  his  debt  ;  and  in  consequence  of  such  agreement,  the  debtor  purchase 
goods  for  such  adventure  ;  it  is  a  partnership  agreement,  and  both  debtor  and 
creditor  are  liable  to  the  vendors  of  the  goods.  And  Lord  Ellenborough  Ch.  J. 
shows  the  distinction  between  this  case  and  the  last :  his  Lordship  says,  "  The 
case  of  *Saville  v.  Robertson  does  indeed  approach  very  near  to  this,  but  the 
distinction  between  the  cases  is,  that  there  each  party  brought  his  separate  par- 
cel of  goods,  which  were  afterwards  to  be  mixed  in  the  common  adventure  on 
board  the  ship,  and  till  that  admixture,  the  partnership  in  the  goods  did  not 
arise.  But  here  the  goods  in  question  were  purchased  in  pursuance  of  the 
agreement  for  the  adventure,  of  which  it  had  been  before  settled,  that  Duck- 
worth was  to  have  a  moiety."  And  Mr.  Justice  Bayley  observed,  "That  in  Sa- 
ville  v.  Robertson  after  the  purchase  of  the  goods  made  by  the  several  adventur- 
ers, there  was  still  a  further  act  to  be  done,  which  was  the  putting  them  on 
board  the  ship,  in  which  they  had  a  common  concern  for  the  joint  adventure  ; 
and  until  that  further  act  was  done,  the  goods  purchased  by  each,  remained  the 
separate  property  of  each.  But  here  as  soon  as  the  goods  were  purchased,  the 
interest  of  the  three  attached  in  them  at  the  same  instant,  by  virtue  of  the  pre- 
vious agreement." 

In  the  case  of  proprietors  of  stage  coaches  it  has  been  held,  that  if  the  pro- 
prietors of  a  stage  coach  from  London  to  a  distant  place,  divide  the  road  into 
different  quarters  ;  and  the  separate  proprietors  are  severally  the  owners  of  the 
harness  and  horses  which  draw  the  coach  through  dieir  respective  districts,  and 
severally  provide  their  stabling,  food,  and  horse-keepers  in  their  districts,  and 
the  profits  are  divided  in  proportion  to  the  number  of  miles  ;  and  it  is  notorious 
on  the  road,  that  the  separate  proprietors  horse  the  separate  stages,  and  that 
the  tradesmen  on  the  road  give  credit  to  the  separate  proprietors  for  all  goods 
furnished  to  them,  and  there  is  no  evidence  that  purchases  made  by  the  separate 
proprietors  are,  upon  the  general  adjustment  of  accounts  between  all  the  propri- 
etors, computed  as  part  of  the  general  outgoings  ; — and  if  goods  are  delivered  to 
one  of  the  proprietors  for  the  use  of  his  horses,  by  a  vendor,  who  is  the  owner 
of  the  stable  where  such  horses  are  kept,  and  who  receives  part  of  the  price  of 
the  goods  by  a  bill  drawn  separately  on  such  proprietor,  and  who  expresses 
his  fears  that  upon  the  failure  of  such  proprietor,  he  shall  lose  the  residue  ; 
such  vendor  can  recover  only  from  the  proprietor  with  whom  he  immediately 
dealt,  (g) 

A  partnership  may   exist  in  a  particular  concern  without  constituting  a  gen- 

(/)   12  East,    121.  (g)    Bailon   v.    Hanson,  2   Campb.  97.  2 

Taunt.  49. 

#480 


480  Of  Partnership   Contracts,  and        [Part  III. 

eral  partnership,  unless  a  representation  is  made  of  a  general  partnership. 
Thus,  in  the  case  of  De  Berkom  v.  Smith  and  Lewis  (h),  which  was  an  action 
of  assumpsit  to  recover  the  value  of  a  quantity  of  foreign  lace  against  the  de- 
fendants, charging  them  as  partners.  It  was  admitted  that  Smith,  one  of  the 
defendants,  was  liable,  but  the  other  defendant,  Lewis,  denied  that  he  was  a 
partner.  This  was  the  only  question  in  the  case.  The  evidence  on  the 
part  of  the  plaintiff  was,  that  he  was  a  foreigner  living  at  Lisle  in  Flanders ; 
that  having  been  *applied  to  by  the  defendants  for  a  quantity  of  lace  on  credit,  that 
before  he  would  furnish  it,  he  wrote  over  to  his  correspondent  in  London  to  in- 
quire concerning  their  circumstances  and  situation  ;  that  his  correspondent  had 
inquired  from  Mr.  Botham,  a  merchant  in  London,  who  informed  him  that  they 
were  in  partnership  in  trade,  which  information  the  correspondent  communica- 
ted to  the  plaintiff,  who  in  consequence  thereof  gave  them  the  goods  on  the 
terms  they  asked.  The  only  connexion  in  trade  between  Mr.  Botham  and  the 
defendants,  was  in  discounting  bills,  which  Mr.  Botham  had  been  in  the  habit  of 
doino-  for  Smith,  one  of  the  defendants,  but  that  on  discounting  a  bill  at  one  time 
for  Smith,  he  had  introduced  Lewis  to  him  as  his  partner.  Lord  Kent/on  Ch. 
J.  upon  the  evidence  ruled,  "  That  it  was  not  sufficient  to  charge  Lewis  as  a 
partner."  That  persons  might  be  partners  in  a  particular  concern  or  business, 
but  that  notwithstanding  if  they  did  not  appear  to  the  world  as  partners,  that  it 
should  not  be  sufficient  to  constitute  a  general  partnership,  and  make  them  lia- 
ble in  other  cases  not  connected  with  such  particular  business.  That  the  cir- 
cumstances in  evidence  of  the  introduction  of  Lewis  to  Mr.  Botham  should  be 
taken  secundum  subjectam  materiam,  that  is,  as  applying  to  the  transaction  in 
which  Smith  was  concerned  with  Mr.  Botham,  the  discounting  of  bills,  to 
which  transaction  only  it  should  be  confined,  and  that  he  was  therefore  of  opin- 
ion, that  without  further  evidence  a  general  partnership  could  not  be  establish- 
ed, in  order  to  charge  Lewis  the  other  defendant  in  this  action."  However,  it 
afterwards  appearing  in  evidence  that  in  part  Lewis  had  represented  himself  to 
the  plaintiff  as  partner  in  trade  with  Smith ;  his  lordship,  in  his  charge  to  the 
jury,  added,  ''  That  though,  in  point  of  fact,  parties  are  not  partners  in  trade, 
yet  if  one  so  represents  himself,  and  by  that  means  gets  credit  for  goods  for 
the  other,  that  both  shall  be  liable."  The  plaintiff  therefore  upon  this  evidence 
obtained  a  verdict.  (147) 


(h)   1  Esp.  Rep.  29. 


(147)  Though  the  part  owners  of  a  ship  are,  generally  speaking,  tenants  in  common,  yet, 
there  may  be  a  special  partnership  between  them,  in  the  ship,  as  well  as  in  the  cargo,  in  re- 
lation to  a  particular  voyage  or  adventure  ;  And  in  such  case,  where  one  of  two  partners 
receives  or  obtains  possession  of  the  whole  proceeds,  he  has  a  right  to  retain  them,  until  he 
is  reimbursed  or  indemnified  for  what  he  has  ;  aid  or  advanced  more  than  his  share,  for  out- 
fits, repairs  and  (■■xpciic.es  on  account  of  the  particular  adventure;  but  not  for  a  general  ba- 
lance of  account  arising  from  former  and  distinct  voyages  or  adventures  ;  whether  in  the 
same  or  different  vessels,  there  being  no  general  partnership  between  them  ;  and  each  ad- 
venture constituting  a  separate  partnership,  which  terminated  with  the  particular  adventure. 
Mumford  v.JficoU,  20  J.  R.  61 1.     Owners  of  freight  and  cargo  are  also  partners.     Id.    So, 

*481 


Chap.  1.]  Of  the  Liability  of  Partners.  481 

6.  In  what    Cases    a  Person,  not    being    in    Fact  a  Partner,  may 

nevertheless  make  himself  liable  as   such  with  third    persons. j if 

a  person  suffers  his  name  to  be  used  in  a  business,  and  holds  himself  out  as  a 
partner,  though  in  point  of  fact  no  partnership  exists,  he  is  liable  to  a  creditor 
who  contracts  with  the  firm.  This  was  determined  in  the  case  of  Young  v. 
Axtell  and  another (i),  which  was  an  action  to  recover  600/.  and  upwards  for 
coals  sold  and  delivered  by  the  plaintiff,  a  coal  merchant.  An  agreement  be- 
tween the  defendants  was  given  in  evidence,  stating  that  the  defendant  Mrs. 
Axtell  had  lately  carried  on  *the  coal  trade,  and  that  the  other  defendant  did 
the  same ;  that  Mrs.  Axtell  was  to  bring  what  customers  she  could  into  the 
business,  and  that  the  other  was  to  pay  her  an  annuity,  and  also  2s.  for  every 
chaldron  that  should  be  sold,  to  those  persons  who  had  been  her  customers,  or 
were  of  her  recommending.  The  plaintiff  also  proved,  that  bills  were  made 
out  for  goods  sold  to  her  customers,  in  their  joint  names  ;  and  the  question  was, 
whether  Mrs.  Axtell  was  liable  for  the  debt  1  Lord  Mansfield  said,  "  He  should 
have  rather  thought  on  the  agreement  only,  that  Mrs.  Axtell  would  be  liable, 
not  on  account  of  the  annuity,  but  the  other  payment,  as  that  would  be  in- 
creased in  proportion  as  she  increased  the  business.  However,  as  she  has 
suffered  her  name  to  be  used  in  the  business,  and  held  herself  out  as  a  partner, 
she  was  certainly  liable,  though  the  plaintiff  did  not  at  the  time  of  dealing  know 
that  she  was  a  partner,  or  that  her  name  was  used."  And  the  jury  according 
ly  found  a  verdict  for  the  plaintiff. 

7.  Of  infant  Partners.]  If  the  executors  of  a  deceased  partner  con- 
tinue his  share  of  the  partnership  property  in  trade  for  the  benefit  of  an  infant ; 
and  the  partnership  business  is  continued,  and  the  executors  divide  the  profits 
and  loss  with  the  partners,  they  are  partners  and  liable  as  such,  though  they 
act  solely  for  the  benefit  of  the  infant,  and  though  their  names  are  not  used  in 
the  business. (A) 

If  duriag  a  partnership,  between  an  adult  and  an  infant,  the  paitners  for  the 
purpose  of  carrying  on  their  trade  take  a  lease  of  certain  premises,  and  the 
lease  purports  to  be  granted  in  consideration  of  a   sum  paid  by  the   infant  and 


(?")  Cited  in  2  H.  Bl.  242.     Note,   if  there  notice  is  given,    cannot  sue  him,  though  he 

he  a  particular  stipulation  between  joint  deal-  may  take  a  share  of  the  profits.     Alderson  v. 

crs,  that  one  of  them  shall  not  be  liable  as  a  Pope,  1  ( lampb.  104.  n. 

partner,  and  notice  whereof  is  given  to  some  (k)   Wightmanvt  Townroe,  1  Maule  &  Sel. 

with  whom  they  deal,  those  to  whom  such  412. 


where  H.  &.  S.  made  a  joint  purchase,  each  paying  one  half  of  the  price  :  They  sold  one 
package  of  the  goods  to  A.,  on  credit,  and  divided  the  residue  of  the  goods  equally  between 
them  ;  and  fl.  paid  S.  one  half  of  the  price  of  the  package  sold  :  A.  having  become  insol- 
vent, H.  brought  assumpsit  against  A.  to  recover  one  half  of  the  loss  arising  from  the  insol- 
vency of  A. ;  it  was  held,  that  this  was  a  partnership  transaction  ;  and  therefore,  that  an 
anion  atlaw  couldnotbe  sustained  without  an  express  promise  to  pay.  Hoisted  v.  Schmd- 
zcl,  17  J.  R.  80.  So,  if  two  persons,  jointly,  become  the  owners  of  goods,  and  one  of  them, 
with  the  assent  of  tiie  other,  take  them  to  market,  under  an  agreement  that  every  thing 
should  be  done  to  forward  the  business,  and  the  goods  converted  into  money,  and  the  goods 
are  sold  accordingly,  and  the  avails  applied  to  the  payment  of  a  joinl  debt;  these  facts  are 
the  necessary  ingredients  of  a  limited  partnership.     Crumpston  v.  MWair,  1  Wend.  457. 

#482 


4S2  Of  Partnership  Contracts,  and         [Part  III. 

the  adult,  of  which  one  moiety  is  paid  by  the  infant  in  the  presence  of  the  adult, 
and  bills  of  which  the  first  is  due  four  months  after  date,  are  drawn  by  the  les- 
sor for  the  other  moiety,  and  accepted  by  the  infant  in  the  partnership  firm,  and 
if  upon  his  attaining  twenty -one,  some  weeks  before  the  first  bill  is  due,  he  dis- 
solve the  partnership,  but  his  name  remain  over  the  door  for  three  weeks  af- 
terwards ;  and  if  the  adult  enter  into  a  new  arrangement  with  the  lessor,  by 
which  he  gets  a  remission  of  part  of  the  rent  and  taxes  ;  and  when  the  first  bill 
becomes  due  it  is  dishonoured,  and  the  lessor  sue  the  adult  alone,  who  compro- 
mises the  action,  without  the  knowledge  of  the  infant,  by  surrendering  the  lease 
to  be  cancelled,  and  by  having  the  bills  destroyed  ;  and  no  express  notice  is 
given  by  the  infant  to  the  lessor  of  his  disaffirmance  of  the  contract ;  and  the 
infant  commence  an  action  against  the  lessor  for  the  moiety  which  he  paid  ;  it 
ought  to  be  left  to  the  jury  to  determine  whether  the  lessor  has  not  dispensed 
with  formal  notice  of  disaffirmance.  (I) 

If  an  infant  partner  do  not,  upon  his  attaining  the  age  of  twenty-one,  *notify 
his  discontinuance  of  the  partnership,  he  is  liable  as  a  partner  for  goods  supplied 
after  he  attains  that  age.  (m) 

If  a  father  open  a  bank  in  his  own  name  and  the  name  of  an  infant  son,  who 
has  no  interest  in  the  concern,  the  father  cannot  in  his  own  name  maintain  an 
action  against  a  customer  of  the  house  for  money  advanced,  unless  it  appear 
that  the  son  has  no  share  aspaitner  with  the  father,  and  that  the  money  advanc- 
ed belonged  to  the  father  :  for  though  an  infant  be  a  member  of  a  firm,  yet 
he  must  join  in  an  action  for  recovery  of  a  debt  due  to  the  firm.  (n)(  148)  But 
if  one  of  two  partners  is  an  infant,  the  holder  of  a  bill  accepted  by  both,  may 
declare  upon  it  as  accepted  by  the  adult  only,  and  if  the  defendant  pleads  in 
abatement  that  the  other  partner  ought  to  be  joined  with  him  as  a  defendant, 
the  plaintiff  must  reply  his  infancy,  and  it  is  no  departure,  (o) 

2.  OF  THE  LIABILITY  OF  PARTNERS  UPON  CONTRACTS,   &c.  MADE  BY 
ALL  OR  ANY  OF  THEM  DURING  THE  PARTNERSHIP. 

1.  Of  the  Purchase,  Sale,  and  Warranty  of  Goods  ;  and  of  the  pledg- 
ing thereof.] — It  is  a  general  rule,  that  the  act  of  every  single  partner,  in 
a  transaction  relating  to  the  partnership,  binds  all  his  copartners,  however 
disadvantageous  it  may  happen  to  be  to  the  concern  ;(149)   and  even  though  it 

(/)    Holmes    v.     Blogg,    8     Taunt.    35.    1  (n)   Teeds  v.  Elworthy,  14  East   210. 

Moore,    466.  (o)     Burgess    v.    Merill,    4  Taunt.    468. 

(m)  Goode  v.  Harrison,  5  Barn.  &  Aid.  147.     See  also  Gibbs  v  Merill,  3  Taunt.  313. 


(148)  See  Wamsleyv.  Linde  nberger  &  Co.,  2    Rand.  478. 

(149)  See  Tillier  v.  Whitehead,  1  Dall.  269.  Crawford  v.  Willing,  4  Dall.  286.  Manhat- 
tan Company  v.  Ledyard,  1  Caines,  192.  Walden  v.  Sherburne,  15  J.  R.  409.  Odiorne  v. 
Maxey,  15  Mass.  Rep.  39.  Kelley  v.  Hurlburt,  5  Cowen,  534.  Reynolds  v.  Cleveland,  4  Cow- 
en,  282.  A  copartnership  formed  to  transport  passengers  and  their  baggage,  by  a  line  ol 
stages,  does  not,  from  the  mere  nature  of  the  business,  authorize  one  of  the  partners  to 
bind  the  firm  by  an  agreement  that  he  will  convey  a  person  a  certain  distance,  within  a  spe- 
cified time.     Walcottv.  Canfield,  3  Conn.  Rep.  194. 

*483 


Chap.  1.]  Of  the  Liability  of  Partners,  483 

should  be  against  the  express  stipulation  of  the  articles  of  partnership :  they 
must  also  bear  the  loss  happening  by  the  fraudulent  conduct  of  their  partner  in 
the  disposition  of  goods  purchased.  Thus,  in  the  case  of  Bond  v.  Gibson 
and  Jcphson(p),  which  was  an  action  of  assumpsit  for  goods  sold  and  delivered. 
It  appeared,  that  while  the  defendants  were  carrying  on  the  trade  of  harness- 
makers  together,  Jephson  bought  of  the  plaintiff  a  great  number  of  bits  to  be 
made  up  into  bridles,  which  he  carried  away  himself;  but  that  instead  of 
bringing  them  to  the  shop  of  himself  and  his  copartner,  he  immediately  pawned 
them  to  raise  money  for  his  own  use.  For  the  defendant  Gibson  it  was  con- 
tended, that  this  could  not  be  considered  a  partnership  debt,  as  the  goods  had 
not  been  bought  on  the  partnership  account,  and  the  credit  appeared  to  have 
been  given  to  Jephson  only  :  it  was  admitted,  that  the  ease  would  have  been 
different,  had  the  goods  once  been  mixed  with  the  partnership  stock,  or  if 
proof  had  been  given  of  former  dealings  upon  credit  between  the  plaintiff  and 
the  defendants.  But  Lord  Ellcnborough  Ch.  J.  said,  "  Unless  the  seller  is 
guilty  of  collusion,  a  sale  to  one  partner  is  a  sale  to  the  partnership,  with  what- 
ever view  the  goods  may  be  bought,  and  to  whatever  purposes  they  may 
be  applied.  I  will  take  it  that  Jephson  here  meant  *to  cheat  his  co-partners  ; 
still  the  seller  is  not  on  that  account  to  suffer.  He  is  innocent,  and  he  had  a 
right  to  suppose  that  this  individual  acted  for  the  partnership."  The  plaintiff 
accordingly  obtained  a  verdict  for  the  full  amount  of  the  goods. 

So,   if  two  persons   in   partnership  for  the  sale  of  horses,    agree  between 
themselves  never  to  warrant   any  horse  ;  yet  though  this  be  their  course  of 
business,  if  upon  the  sale  of  a   horse,  the  property  of  the  partnership,  one  of 
them  give  a   warranty,  the  other  will  be  bound  by  it.(</)(150)     But  if  three 
persons  enter  into  partnership  as  sugar  brokers,   and  it  be  agreed  that  none  of 
the  partners  should  buy  any  sugars  for  the  trade  without  the  consent  of  a  ma- 
jority   of  the  partners  ;  and  that  if  any   of  them  should  buy    sugars  without 
such  consent,  the  same  should  be  at  the  risk  of  the  person  so  buying  them,  and 
the  other  partners  should  not  be  liable  to  the  payment  of  the  same  :   and  if,  after 
the  trade  has  been  carried  on  for  some  time,  one  of  the  partners  give  notice   to 
his  co-partners  that  he  will  no    longer  be  concerned  in  the  joint  trade,  and  will 
withdraw  or  dispose  of  his  share   of  the  stock,  and  cause  an  advertisement  to 
that   effect  to  be   fixed  and  published  in    the  Exchange :   and  if  subsequent  to 
this  notice,  the  two   remaining  partners    treat  with  a  trader  for  the  purchase  of 
some  raw  sugar ;  and  the  outgoing  partner  being  informed  of  the  treaty,  give 
notice  to  the  trader  that  he  will  not  be  accountable  for  any  sugars  which  the  re- 
maining partners  may  buy  of  him  ;  and   the   trader  answer,  that  he  is. satisfied 
with  the  security  of  the  remaining  partners  only,  and  will  sell  them  his  sugars 
on  their  account  and  credit,  and  the  trader  take  promissory  notes  in  their  names 


(?)    1  Cam  ph.  185. 

(q)  Per  Abbott  Cli.  J.    in    Sandilands    v.     Marsh,  2  Barn.  &  Aid.  679. 


(150)  See  Clark  v.  Holmes,  3.  J.  R.  148.     Semb  contra. 

59  #484 


484  Of  Partnership  Co?itracts,  and        [Part  III. 

only,  and  a  separate  account  is  kept  of  the  sugars,  and  they  are  not  blended 
with  the  common  stock  of  the  partnership  ;  the  outgoing  partner  is  not  liable.(r) 

If  two  persons  enter  into  a  speculation  for  the  purchase  of  goods,  so  as  to  be 
partners  in  that  single  transaction,  a  pledge  by  one  of  the  partners  of  the  part- 
nership goods,  to  a  person  who  has  not  notice  that  the  property  is  joint,  and 
where  there  is  no  fraud;  binds  the  firm. (s)  Partners  may  bind  each  other  in 
transactions  relating  to  the  joint  trade,  unless  there  is  notice  of  any  particular 
circumstance  to  vary  the  joint  liability ;  but  if  the  transaction  does  not  relate  to 
the  partnership,  the  firm  is  not  liable,  except  under  special  circumstances,  by  the 
act  of  one  partner.  (<)  (151) 

2.  Of  a  Guarantee  entered  into  by  One  of  several  Partners  in 
the  Name  of  the  Firm,  either  on  account  of  the  Partnership,  or  on 
his  own  separate  Dealing,  &c]  If  one  of  several  partners  enter  *into  an 
agreement  with  a  customer,  as  to  the  terms  on  which  certain  business  shall  be 
conducted  by  the  firm,  although  such  business  is  out  i}{  their  usual  course  of  deal- 
ing, and  even  contrary  to  their  own  private  arrangement ;  yet  if  such  business  is 
done  in  the  name  of  the  firm,  and  with  the  knowledge  of  the  other  partners,  all 
are  liable  to,  and  bound  by  the  agreement.  Thus,  in  the  case  of  Sandilands  v. 
Marsh,(u)  where  it  appeared  that  the  defendant,  who  was  a  navy  agent,  had 
formerly  been  in  partnership  with  Mr.  Creed,  and  that  the  firm  of  Marsh  and 
Creed  had  been  the  navy  agent  to  Mr.  Hoicden.  On  the  12th  September, 
1811,  Mr.  Creed  wrote  the  following  letter  to  Mr.  Howden :  "  I  have 
an  opportunity  of  employing  your  remaining  property  in  the  stocks  for  three 
or  four  years,  in  a  way  that  will  double,  or  nearly  so,  the  income  you  derive 


(r)   Menvel  v.  Whiney,  5  Bro.  P.  C.  489.  (t)  Ex  parte  Agace,  2  Cox  Rep.  312. 

(s)  Raba  v.  Ryland  Gow,  Ni.  Pri.Cas.  132.         (u)  2Barn.  &  Aid.  673. 


(151)  If  one  partner  sell  and  deliver  the  goods  of  the  partnership,  inpayment  of  his  separate 
debt  the  other  partners  are  bound  by  his  act,  and  the  purchaser  is  not  liable  to  the  firm. 
Kirkpatrick  v.  Turnbull,  Addis.  259.  A  note  made  by  one  partner,  expressed  "  I  promise 
to  pay,"  &c.  and  subscribed  by  the  name  of  the  firm,  is  binding  on  the  firm  :  And  such  note, 
will  be  deemed,  prima  facie,  to  have  been  given  in  the  due  course  of  the  partnership  busi- 
ness •  and  if  it  were  given  for  the  individual  debt  of  one  of  the  partners,  it  is  matter  of  defence, 
and  must  be  shown  by  the  party  claiming  advantage  of  it.  Doty  v.  Bates,  11  J.  R.  544. 
Where  one  of  two  partners  executes  a  bond  for  the  duties  on  goods  imported  on  the  part- 
nership account,  with  surety,  and  the  surety  advances  money  to  his  co-obligor  to  pay  the 
bond  both  partners  are  liable  for  the  money  advanced,  this  being  a  partnership  transac- 
tion ■'  but  it  seems,  that  if  the  surety  himself  had  taken  up  the  bond,  his  only  remedy 
would  have  been  against  his  co-obligor.  Walden  v.  Sherburne,  15  J.  R.  409.  But  where 
A.  and  four  others  were  owners,  in  distinct  proportions,  of  a  cargo  purchased  with  the  pro- 
ceeds of  an  outward  cargo  belonging  to  the  same  persons ;  A.  not  being  connected  in 
trade  with  the  others,  made  insurance  on  his  part  of  the  cargo  on  his  own  account,  and 
there  beinc  no  agreement  between  the  parties  to  share  in  the  future  sale  of  the  cargo  ;  it 
was  held,°that  they  were  not  partners.  Holmes  v.  The  United  Ins.  Co.  2  J.  C.  329.  See 
Post  v.  Kimberly,  9  J.  R.  470.  So,  if  a  security  be  given  by  one  partner,  in  the  partnership 
name  for  his  own  individual  debt,  (and  this  be  known  to  the  creditor,)  without  the  consent 
of  the  other  partner,  it  is  not  binding  upon  them.  Livingston  v.  Hastie,  2  Caines  246- 
Livingston  v.  Roosevelt,  4  J.  R.  251.     Dubois  v.  Roosevelt,  Id.  262.  note.     Lansing  v.   Gaine, 

2  J.  R.  300. 

If  one  uartner  purchase  goods  on  the  partnership  account,  and  the  goods  are  charged 
to  the  individual  partner,  the  vendor  being  ignorant  of  the  partnership,  the  vendor  may  re- 
port to  the  partnership  for  payment,  when  discovered,  Everitt  v.  Chapman.  6  Conn.  Rep.  347. 

*485 


Chap.  1.]  Of  the  Liability  of  Partners-  485 

from  that  source.     It  is   by   an  annuity    of  8  per  cent,  per  annum  on  three 
lives,  secured  on    property,  the   receipts  of  which  pass  through   our  hands, 
and  will  be  guaranteed  by  our  house,  and  not  redeemable  till  after  three  years. 
The  party  granting  the  annuity  is  in  the  receipt  of  a  clear  unincumbered  in- 
come of  above   12,000/.  per  annum,  and  will,  as  soon  as  he  can   after  three 
years,  redeem  the  annuity  ;  so  that  your  capital  remains  untouched.     For  our 
trouble  in  the  business,  and  for  guaranteeing  the  punctual  half-yearly  payment 
of  the  annuity  to  you,  we  should  expect  a  commission  of  5  per  cent.,  but  the 
benefit  you   would  derive  from  the    arrangement   would  very  well  allow  of  it. 
Windsor's  and  this  annuity  would  soon  clear  off  the  advance  on  our   account, 
and  leave  your  income  materially  improved.     If  you  see  this    business  in  the 
light  I  do,  and  will  say  aye  or  no  by  return  of  post,  I  will  either  go  on  with  it, 
and  send  you  down  a  bank  power  for  sale   of  your  stock,  or   else   secure  it 
for  some  other  friend."     This  letter  was  signed  Richard  Creed.     Howden  im- 
mediately  accepted  this  offer,  and  a  joint  power  of  attorney  was   transmitted, 
empowering  Marsh    and    Creed   to  sell    the    stock,   and   the  stock    was    ac- 
cordingly sold  out  on  7th  of  January,  1812.     On   the  23d    of  January,    1813> 
the  annuity  in  question  was  purchased   of  Mr.  Joshua  Rowe,  and  after   having 
been  paid  for  about  two  years  became  in  arrear.     Howden  died  the  7th  of  March 
1813.  By  a  letter  dated  the  10th  April,  1813,  signed  Marsh  and   Creed,  in  an- 
swer to  an  application  made  on  the  part  of  Mr.  Howden'' s  representatives,  they 
stated  in  substance  as  follows  : — "  He  has  two  annuities,   one  yielding  a  clear 
400/.  per  annum,  payable  quarterly,  exclusive  of  the  amount  of  the  annual  pre- 
mium on  the  insurance  of  the  life  of  Mr.    Rowe,  the   grantor,  at  the  Equitable 
Insurance    Office,  and  the  purchase-money  for  which  was  4,000/.  in  place  of 
5,000/.,  which  we  informed  Mr.    Howden  we  should  give  for  it.     This  is  guar- 
anteed by  our  house  on  a  commission,  and  is  not  determinable  for  three  years." 
Neither  of  the  *above   letters  were   entered  in  Marsh  and  Creed's  letter-book, 
nor  did  it  appear  that  Marsh  had  personally  any  knowledge  of  the  guarantee. 
It  was  proved,  that  it  was  no  part  of  the  ordinary  business  of  navy  agents  to  deal 
in   annuities.     The  charge  of  5  per  cent,  commission  had  never  been  made  bv 
only  2  1-2  per  cent.     The  usual  commission  of  navy  agents,  had  been  charged 
in  the  different  accounts  transmitted  by  Marsh  and  Creed.     In  those  accounts, 
however,  there  were  found  several  items  referring  to  the  sale  of  the  stock  and 
the  receipt  of  the  annuity.     Under  these  circumstances  it  was  contended,  first, 
that  this  guarantee  by   Creed  could    not    bind    his    partner  Marsh:  But  the 
Court  held  that  it  did:    and  that    the    verdict,    which    had    been    given    for 
the  plaintiff,  was  right.     Abbott  Ch.  J.  said,  « The  material  question  which 
has   been    raised    upon    the    facts    proved  at  the  trial  is  certainly    most  im- 
portant and  extensive  in  its  consequences,  namely,  whether  this  defendant  shall 
be  held  to  be  bound  by  the  guarantee  given  without  his  knowledge,  by  his  part- 
ner,   Creed,  and  if  the  verdict  of   the   jury    finding  him  to  be  so  "bound,  be 
not  sustainable,  it  will  be   very   dangerous  hereafter  to  deal   with  a  partner- 
ship ;  for  the  business  in  each  department  of  a  firm  is  generally  transacted  by 
one   partner  only.     It   has  undoubtedly  been  held,  that  in  a  matter  wholly 

*486 


486  Of  Partnership   Contracts,  and  [Part  III. 

unconnected  with  the  partnership,  one  partner  cannot  bind  the  others.  But 
the  true  construction  of  the  rule  is  this,  that  the  act  and  assurance  of  one 
partner,  made  with  reference  to  business  transacted  by  the  firm,  will  bind  all 
the  partners.  In  this  case  the  proper  business  of  Marsh  and  Creed  was,  to  re- 
ceive the  money  due  from  the  navy  board  to  their  customers,  and  their  divi- 
dends in  the  public  funds  ;  upon  which  business  they  charged  Howden  with  a 
commission  of  1\  percent.  It  was  no  part  of  their  ordinary  business  to  guaran- 
tee annuities,  or  to  lay  out  the  money  of  their  customers  in  the  purchase  of 
them.  Under  these  circumstances,  the  original  proposal  was  made  by  Creed, 
in  answer  to  which  the  joint  power  of  attorney  was  transmitted  to  Marsh  and 
Creed,  under  which  the  stock  was  afterwards  sold.  Now  that  sale  must  have 
appeared  in  the  partnership  books  ;  and  if  that  fact  were  doubtful,  it  is  proved 
by  the  balance  stated  in  the  accounts  transmitted  by  the  partnership  ;  that  sale, 
therefore,  and  the  fact  that  the  proceeds  had  been  laid  out  in  the  purchase  of  an 
annuity,  either  were  actually  known,  or  ought  to  have  been  known,  by  Marsh. 
Now,  if  that  whole  transaction  was  known  to  him,  the  guarantee  which  is  con- 
nected with  it  becomes,  in  point  of  law,  an  assurance  made  by  one  partner 
with  reference  to  business  transacted  by  both ;  and  according  to  the  rule  pre- 
viously stated,  it  will  bind  both." 

But  if  a  member  of  a  partnership  firm  have  separate  dealings  with  a  house  of 
trade ;  and  as  a  security  for  such  dealings,  give  the  guarantee  of  the  firm  with- 
out their  privity,  it  shall  not  bind  the  firm.  Thus,  in  *the  case  of  Hope  v. 
Cust,(v)  where  it  appeared  that  Mr.  Fordyce  who  traded  very  largely  in  his 
separate  capacity,  as  well  as  in  the  business  of  a  banker,  in  partnership  'with 
others,  having  considerable  dealings  in  his  private  capacity  with  Hope  and  Co. 
in  Holland,  did,  for  and  in  the  names  of  himself  and  partners,  give  them  a  gen- 
eral guarantee  for  the  money  due  from  him  in  his  separate  capacity.  Fordyce 
became  a  bankrupt,  and  afterwards  all  the  partners  became  bankrupts.  And  a 
bill  was  filed  in  the  Court  of  Chancery  by  Hope  and  Co.  in  order  to  have  the 
benefit  of  this  guarantee :  upon  which  that  court  directed  an  issue  to  try  the 
validity  of  it.  Lord  Mansfield,  in  summing  up  the  evidence  to  the  jury,  said, 
"  There  is  no  doubt  but  that  the  act  of  every  single  partner  in  a  transaction  re- 
lating to  the  partnership  binds  all  the  others.  If  one  give  a  letter  of  credit  or 
guarantee  in  the  name  of  all  the  partners  it  binds  all.  But  there  is  no  general 
rule  which  may  not  be  infected  by  covin,  or  such  gross  negligence  as  may 
amount  to,  or  be  equivalent  to  covin ;  for  covin  is  defined  to  be  a  contrivance 
between  two,  to  defraud  or  cheat  a  third.  Therefore  the  whole  will  turn  on 
this,  whether  the  taking  the  guarantee  from  Fordyce  himself  in  his  own  hand- 
writing, without  consulting  the  other  partners,  or  having  their  privity,  is  not 
such  gross  negligence  in  the  Hopes  as  will  amount  to  a  fraud  or  covin.  For- 
dyce was  acting  in  two  several  capacities,  having  transactions  in  his  own  name 
only,  for  his  own  separate   benefit,  and  in  the  names  of  the  partnership  for  his 

(V)  Sittings  at  Guildhall  after  Mich.  Term.  1774.  coram  Lord  Mansfield  Ch,  J.  cited  by 
Laurence,  Just,  in  1  East  Rep.  53. 

*487 


Chap.l.]  Of  the  Liability  of  Partners.  487 

own  benefit.  This  case  comes  out  of  Chancery,  where  an  affidavit  or  answer 
of  all  parties  might  have  been  had  if  necessary  ;  but  none  such  has  been  pro- 
duced, and  therefore  it  must  be  taken  that  the  partners  knew  nothing  of  it,  and 
had  no  profit  by  it,  or  privity  in  the  transaction.  Another  fact  to  be  granted  is, 
that  as  between  Hope  and  Co.  and  Gurnal  and  Co.,  and  Fordyce,  the  whole 
transactions  are  avowedly  with  Fordycc  only  in  his  separate  capacity.  The 
next  fact  is  the  correspondence  in  1770,  preceding  the  second  guarantee.  It  is 
clear,  that  Fordycc's  deposits  and  interests  in  the  funds  were  both  doubted,  and 
then  the  Hopes  tried  to  make  a  scheme  to  get  a  second  security  without  shock- 
ing him,  by  suggesting  there  was  a  new  partner.  The  first  guarantee  was  giv- 
en in  1764,  and  that  never  had  been  called  in,  and  still  existed.  There  was 
then  no  occasion  for  a  new  one  :  for  the  change  of  a  partner,  and  taking  in  a 
new  one,  would  not  destroy  a  former  guarantee.  The  scheme  was  to  get  se- 
curity for  debts  not  well  secured,  the  goodness  of  which  was  doubted  ;  and  they 
therefore  get  this  from  Fordyce  alone,  clandestinely,  without  the  knowledge  of 
his  partners.  If  the  fact  be  clear  that  Hbpe  and  Co.,  and  Gurnal  and  Co., 
knew  that  this  was  done  to  *cheat  the  partners  of  Fordyce,  there  is  no  question 
in  the  cause.  But  it  is  manifest  that  they  trusted  to  it  as  binding  on  the  part- 
nership. Therefore  this  brings  it  to  the  second  question,  whether  it  be  not  a 
gross  negligence  ;  especially  as  they  knew  at  the  time  that  Fordyce  was  acting 
in  his  separate  capacity ;  and  this  security  was  intended  to  indemnify  them 
against  his  separate  debts.  Verdict  for  the  defendant.  Lord  Mansfield  after- 
wards, in  his  report  to  the  Court  of  Chancery,  on  a  motion  being  made  for  a 
new  trial,  said,  three  things  were  established  to  the  satisfaction  of  himself  and 
the  jury.  First,  that  the  transactions  between  Hope  and  Co.  and  Fordyce  were 
wholly  on  Fordycc's  account.  Secondly,  that  the  partners  of  Fordycc  derived 
no  profit  or  benefit  whatsoever  from  them.  Thirdly,  that  they  had  no  notice 
of  the  guarantee  ;  and  consequently  did  not  acquiesce  in  it.  And  Lord  Mans- 
field, said,  he  left  it  to  the  jury,  whether  under  these  circumstances  the  taking 
of  these  guarantees  were,  in  respect  of  the  partners,  a  fair  transaction  or  covin- 
ous, with  sufficient  notice  to  the  plaintiffs  of  the  injustice  and  breach  of  trust 
Fordycc  was  guilty  of  in  giving  them. "(152) 

3.  Of  the  Drawing,  accepting,  and  Indorsing  of  bills  of  Exchange, 
&c.  by  one  of  several  partners,  either  upon  joint  or  separate 
Account.] — If  one  of  several  partners  draw,  accept,  or  indorse  a  bill  or  note, 
or  enter  into  any  other  contract,  not  under  seal,  in  the  name  of  the  partnership 
firm,  for  any  thing  relating  to  the  joint  concern,  all  the  partners  are  bound 
by  it,  and  liable  to   the  person  with  whom  the  engagement  is  made,  if  the 

(152)  Where  one  of  two  partners  subscribed  the  partnership  name  to  a  note,  as  surety  for 
a  third  person,  without  the  authority  or  consent  of  the  other  partner,  the  latter  is  not  bound 
by  the  act  of  the  former ;  and  the  burden  of  proving  the  liability  of  the  other  partner,  lies 
on  the  holder  of  the  note.  Foot  v.  Sabin,  19  J.  R.  154.  So,  the  indorsement  of  a  promissory 
note  for  the  debt  of  a  third  person,  by  one  of  the  members  of  a  firm,  with  the  knowledge  of 
the  creditor,  is  not  binding  on  the  firm,  unless  the  other  partner  was  previously  consulted,  or 
subsequently  assented  to  the  transaction.  Laverty  v.  Burr,  1  Wend.  529.  Sec  The  JVeio 
York  Firemen  Ins.  Co.  v.  Bennett,  5  Conn.  Rep.  574. 

*488 


488  Of  Partnership   Contracts,  and        [Part  IN. 

latter  has  acted  bona  fide.  (153)  The  same  liability  may  also,  in  some  in- 
stances, be  incurred  upon  a  bill  or  other  negotiable  instrument  given  by  one 
partner,  in  the  name  of  the  partnership  firm,  for  his  own  separate  debt  or  con- 
cern. (154)  Thus,  in  the  case  of  Swan  and  others  v.  Steele,  Clerk,  and 
Wood,  (to)  which  was  an  action  of  assumpsit,  wherein  the  plaintiffs  declared, 
first,  on  a  bill  of  exchange,  dated  26th  of  August,  1803,  drawn  by  D.  Maitland 
on  Campbell  and  Co.  for  342/.  payable  to  the  order  of  the  defendants,  and  one 
George  Payne,  deceased,  three  months  after  date,  and  indorsed  by  the  defendants 
and  Payne,  under  the  firm  of  Wood  and  Payne  to  the  plaintiffs  ;  and  which 
bill  Campbell  and  Co.  had  accepted.  At  the  trial,  the  jury  found  a  verdict 
for  the  plaintiff  for  368Z.  5s.  Ad.,  subject  to  the  opinion  of  the  Court  on  the 
following  case  :  "  Wood  and  Payne,  mentioned  in  the  pleadings,  were  wholesale 
grocers  in  Liverpool,  trading  under  the  firm  of  Wood  and  Payne,  from  January 
1802,  until  January  1804  ;  with  whom  the  defendant  Steele  became  a  partner 
in  May  1802,  and  so  continued  till  January  1804,  in  the  business  of  buying  and 
and  selling  cotton  ;  which  business  was  also  carried  on  under  the  same  firm  of 
Wood  and  Payne,  and  at  their  counting  house  ;  but  Steele  was  never  interested 
in  the  grocery  business.  Steele  took  no  active  part  in  the  cotton  concern ;  nor 
*was  it  known  to  the  world  or  to  the  plaintiffs  that  he  was  a  partner.  The 
plaintiffs  sold  to  Wood  and  Payne,  as  grocers,  a  quantity  of  sugar,  for  which 
they  gave  their  acceptance  in  the  firm  of  Wood  and  Payne  at  four  months,  due 
the  11th  of  October,  1803;  and  not  being  able  to  provide  for  it  when  due, 
Wood  and  Payne  on  the  8th  of  October,  1803,  delivered  to  the  plaintiffs  the 
bill  mentioned  in  the  declaration  due  the  29th  of  November,  with  others,  to  pro- 
vide for  that  acceptance  ;  and  the  bill  was  indorsed  by  either  Wood  or  Payne, 
in  the  firm  of  Wood  and  Payne,  without  the  actual  knowledge  of  Steele,  as  all 
other  bills  in  the  cotton  concern  were.  The  said  bill  had  been  paid  to  Wood 
and  Payne,  as  cotton  dealers  by  the  drawer  thereof  for  cotton  sold  to  him,  in 
which  Steele  was,  as  aforesaid,  interested  ;  and  the  name  ''  D.  Maitland'''' 
thereto  subscribed  as  the  drawer,  was  the  handwriting  of  D.  Maitland  of  Wi- 
gan,  to  whom  the  cotton  was  sold.  The  said  bill  has  been  dishonoured,  of 
which  Wood  and  Payne  had  due  notice.  Wood  and  Payne  became  bankrupts 
on  the  16th  January,  1804,  and  the  effects  of  the  cotton  concern  were  insuffi- 
cient to  discharge  its  debts  ;  and  Steele,  when  he  should  have  discharged  those 
debts,  would  have  been  a  creditor  of  the  concern.  The  question  for  the  opin- 
ion of  the  Court  was,  whether  the  plaintiffs  were  entitled  to  recover  ?  If  they 
were,  then  the  verdict  was  to  stand  ;  otherwise,  a  verdict  was  to  be  entered  for 
the  defendant  Steele."  The  Court  determined,  that  the  plaintiffs  were  entitled 
to  recover.     And  Lord  Ellenborough  Ch.  J.  said :  "  It  would  be  a  strange  and 

(w)  7  East,  210. 

(153)  See  Le  Roy,  Bayard  c§-  Co.  v.  Johnson,  2  Peters,  186. 

(154)  It  is  a  general  rule,  that  one  partner  cannot  bind  the  firm  for  the  payment  of  hi3 
own  private  debt.     Baird  v.  Cochran,  4  Serg.  &.  Rawle,  397. 

*489 


Chap.  1.]  Of  the  Liability  of  Partners.  489 

novel  doctrine  to  hold  it  necessary  for  a  person  receiving  a  bill  of  exchange 
indorsed  by  one  of  several  partners,  to  apply  to  each  of  the  other  partners  to 
know  whether  he  assented  to  such  indorsement ;  or  otherwise  that  it  should  be 
void.  There  is  no  doubt  that  in  the  absence  of  all  fraud  on  the  part  of  the 
indorsee,  such  indorsement  would  bind  all  the  partners.  There  may  be  part- 
nerships where  none  of  the  existing  partners  have  their  names  in  the  firm. 
Third  persons  may  not  know  who  they  are ;  and  yet  they  are  all  bound 
by  the  acts  of  any  of  the  partners  in  the  name  or  firm  of  the  partnership.  The 
case  is  too  clear  for  argument,  and  I  should  not  have  permitted  the  point  to  be 
reserved,  if  I  had  not  understood  at  the  trial  that  there  were  some  other  facts 
in  the  case  which  might  raise  a  doubt.  The  distinction  is  well  settled,  that  if 
a  creditor  of  one  of  the  partners  collude  with  him  to  take  payment  or  security 
for  his  individual  debt  out  of  the  partnership  funds,  knowing  at  the  time  that  it 
is  without  the  consent  of  the  other  partner,  it  is  fraudulent  and  void  ;  but  if 
taken  bona  fide  without  such  knowledge  at  the  time,  no  subsequently  acquired 
knowledge  of  the  misconduct  of  the  partner  in  giving  such  security  can  disaf- 
firm the  act.  Now  here  the  three  persons  were  trading  under  the  firm  of 
Wood  and  Payne,  and  in  the  course  of  their  dealings  as  partners  received  the 
bill  in  question  ;  *and  it  was  competent  to  either  of  them  by  his  indorsement,  in 
the  name  of  the  firm,  to  pass  their  interest  in  the  bill :  and  the  plaintiffs,  igno- 
rant of  any  fraud  at  the  time,  take  it  by  such  indorsement  from  one  of  the  part- 
ners. Then  if  the  interest  of  the  plaintiffs  in  the  bill  were  once  well  vested, 
no  subsequent  knowledge  that  such  indorsement  was  made  without  the  consent 
of  one  of  the  partners  will  devest  it.  And  it  would  be  highly  inconvenient  that  it 
should  ;  because  if  the  plaintiffs  had  been  apprised  at  the  time,  that  the  partner 
who  indorsed  the  bill  had  no  authority  to  do  so,  they  might  have  obtained  some 
other  security  for  their  demand. 

But  in  the  case  of  Wells  v.  Masterman  and  others,  (y)  which  was  an  action 
of  assumpsit  on  two  bills  of  exchange,  drawn  by  the  plaintiff  on  the  defendants, 
by  the  style  of  James  Masterman  and  Co.  dated  the  30th  of  January,  1798 ; 
accepted  by  James  Masterman  only,  without  the  words  and  Co.  The  partner- 
ship commenced  in  1795.  James  Masterman  carried  on  a  separate  trade  on 
his  own  account,  and  had  had  dealings  with  the  plaintiff  before  his  partnership, 
who  had  also  dealings  with  the  firm.  The  defence  set  up  to  this  action  was, 
that  the  bills  were  drawn  on  the  separate  account,  and  for  the  separate  con- 
cern of  James  Masterman  only ;  and  that  the  acceptance  in  question  did  not 
bind  the  partnership,  so  that  an  action  could  be  maintained  against  them,  as  the 
acceptors  of  the  bills  in  question  ;  and  another  bill  of  exchange  was  produced, 
drawn  in  the  same  style  and  manner  as  those  in  question,  but  accepted  by 
Masterman  and  Co.  which  had  been  paid.  Lord  Kcnyon  Ch.  J.  said :  "  When 
a  man  enters  into  a  partnership,  he  certainly  commits  his  dearest  rights  to  the 
discretion   of  every  one  who  form  a  part  of  that  partnership  in  which  he  en- 

(/i)  2  Esp.  Rep.  731. 

*490 


490  Of  Partnership  Co?itracts,  and       [Part  III. 

gages;  and  if  a  bill  is  drawn  upon  the  partnership  in  their  usual  style  and  firm, 
and  it  is  accepted  by  one  of  the  partners,  it  certainly  binds  the  partnership  to 
the  payment  of  it:  but  if  a  man  who  has  dealings  with  one  partner  only,  and  he 
draws  a  bill  on  the  partnership  on  account  of  those  dealings,  he  is  guilty  of  a 
fraud,  and  in  his  hands  the  acceptance  made  by  that  partner  would  be  void ; 
but  it  would  be  otherwise  in  the  case  of  a  bona  fide  indorsee.  In  his  hands, 
the  acceptance  of  one  of  the  partners  binds  the  partnership,  as  he  is  ignorant 
of  the  circumstances  under  which  it  was  created,  and  takes  it  on  the  credit  of 
the  partnership  name." 

So,  where  two  partners  contract  a  debt  prior  to  the  admission  of  a  third  part- 
ner, for  which  the  creditor,  at  the  instance  of  the  two,  afterwards  draws  a 
bill  upon  the  three  in  the  name  of  the  partnership  firm  ;  and  the  bill  is  accept- 
ed by  the  two,  without  the  privity  of  the  third,  such  creditor  cannot  recover 
upon  it :  though  if  such  bill  gets  bona  fide  into  the  hands  of  an  indorsee,  all  the 
partners  are  liable  to  him  and  may  be  *sued  thereon.  This  was  settled  in  the 
case  of  Shirreff  and  others  v.  Wilks, (z)  which  was  an  action  upon  the  case 
upon  a  bill  of  exchange  for  78Z.  dated  the  5th  of  November,  1796,  payable  to 
the  order  of  the  plaintiffs  two  months  after  date,  which  was  stated  in  the  decla- 
ration to  have  been  drawn  by  them  on  the  said  G.  Bishop,  W.  Robson,  and  J. 
Wilks,  by  the  name  and  description  of  Messrs.  George  Bishop  and  Company, 
and  to  have  been  accepted  by  them.  The  plaintiffs  in  October,  1795,  sold  and 
delivered  a  quantity  of  porter  to  Bishop  and  Wilks,  who  were  then  partners, 
which  porter  was  entered  in  the  plaintiffs'  books  in  the  names  of  Wilks  and 
Bishop ;  and  the  same  was  afterwards  shipped  for  the  West  Indies,  and  the 
defendant  Wilks  paid  the  shipping  charges.  Robson  became  a  partner  with 
Bishop  and  Wilks  in  April,  1796,  and  continued  so  till  the  8th  of  November 
following,  when  their  partnership  was  dissolved.  The  defendant  iVilks  pre- 
vious to  the  dissolution  of  the  partnership  sent  to  the  plaintiffs  a  memorandum 
or  calculation  in  his  own  handwriting  of  certain  deductions  claimed  by  him  in 
respect  of  the  porter.  The  balance  due  to  the  plaintiffs  in  respect  of  the  porter 
was  78/.  for  which  the  plaintiffs  drew  upon  the  defendants  the  bill  mentioned 
in  the  declaration,  which  bill  was  accepted  by  Bishop  in  the  partnership  firm 
of  all  the  defendants,  by  his  subscribing  thereon  "  Accepted  G.  B.  and  Co." 

The  Court  were  of  opinion  that  the  plaintiffs  were  not  entitled  to  recover. 
And  Lord  Kenyon  Ch.  J.  said  :  "  This  is  an  action  brought  against  three  per- 
sons, Wilks,  Bishop,  and  Robson,  as  acceptors  of  a  bill  of  exchange.  It  appears 
that  the  acceptance  was  in  fact  made  by  Bishop  alone  in  the  name  of  the  firm. 
The  consideration  for  this  bill  was  some  porter  which  had  been  sold  by  the 
plaintiffs  to  Wilks  and  Bishop  only,  at  a  time  when  Robson  had  no  concern 
with  the  house.  Then  the  plaintiffs  knowing  this,  drew  the  bill  upon  all  the 
three  partners,  and  knowingly  take  an  acceptance  from  one  of  them  to  bind  the 
other  two,  one  of  whom,  Robson,  had  no  concern  with  the  matter,  and  was  no 


(z)  1  East  Rep.  48. 
»491 


Chap.  1.]  Of  the  Liability  of  Partners.  49  \ 

debtor  of  theirs  ;  no  assent  of  his  being  found,  and  nothing  stated  to  show  that 
he  had  any  knowledge  of  the  transactions.  It  is  hard  enough  for  one  partner 
in  any  case,  to  be  able  to  bind  another  without  his  knowledge  or  consent  but  it 
would  be  carrying  the  liability  of  partners  for  each  other's  acts  to  a  most  unjust 
extent,  if  we  suffered  a  new  partner  to  be  bound  in  this  manner  for  an  old  debt 
incurred  by  other  persons.  The  plaintiffs  therefore  ought  not  in  justice  to 
have  taken  this  security  by  which  they  were  to  bind  one  who  was  not  their  debt- 
or :  the  transaction  is  fraudulent  upon  the  face  of  it.  It  is  no  answer  to  say 
that  one  partner  has  a  general  power  of  binding  the  rest.  So  an  executor  has 
power  to  bind  the  assets  of  the  testator,  and  to  sell  and  dispose  of  his  effects  • 
and  the  *law  reposes  a  confidence  in  him,  that  he  will  apply  the  proceeds  in  pay- 
ment of  the  testator's  debts  and  legacies  :  but  if  fraud  could  be  proved  in  any 
particular  transaction  between  the  executor  and  a  purchaser,  such  a  sale  would 
be  void.  Nothing  can  be  better  established,  as  a  general  rule,  than  that  the  law 
will  set  aside  every  contract  which  is  fraudulent.  Such  is  the  case  here. 
Wilks  and  Bishop  owed  money  to  the  plaintiffs  ;  these  latter,  knowing  that 
Robson  had  no  concern  with  the  matter,  fraudulently  receive  from  Wilks  and 
Bishop  a  security  by  which  Robson  is  to  be  bound  :  this  therefore  cannot  be 
enforced  in  this  action." 

So,  in  the  case  of  Arden  v.  Sharpc  and  Gilson,(a)  which  was  an  action  of 
assumpsit  by  the  indorsee  of  a  bill  drawn  by  R.  Cowan  on  one  Rae  at  two 
months  after  date,  in  favour  of  R.  Packer  for  60/.  dated  the  4th  of  March,  1796. 
The  case  as  proved,  on  the  part  of  the  plaintiff,  was,  that  on  the  1st  of  March, 
the  day  on  which  the  bill  bore  date,  Gilson,  one  of  the  defendants,  brought  the 
bill  in  question  to  the  plaintiff,  and  requested  him  to  discount  it ;  the  plaintiff 
said  he  could  not  do  it  himself,  upon  which  the  defendant  Gilson  answered,  he 
could  get  it  done  for  him,  but  wished  the  business  to  be  kept  a  secret  from  his 
partner  Mr.  Sharpe  ;  to  which  the  plaintiff  assented  and  took  his  bill.  The  wit- 
ness then  proved,  that  the  indorsement  "  Sharpe  and  Gilson"  was  in  the  hand- 
writing of  Gilson.  Lord  Kcnyon  Ch.  J.  said  :  "  This  action,  under  the  present 
proof,  cannot  be  supported  ;  the  bill  is  indorsed  by  one  partner  in  the  name  of 
the  firm  ;  one  partner  certainly  may  indorse  a  bill  in  the  partnership  name,  and 
if  it  goes  into  the  world,  and  gets  into  the  hands  of  a  bona  fide  holder,  who 
takes  it  on  the  credit  of  the  partnership  name,  and  is  ignorant  of  the  circumstan- 
ces, though  in  fact  the  bill  was  first  discounted  for  that  one  partner's  own  use  • 
in  such  case  the  partnership  is  liable  ;  but  the  case  is  different  where  the  party 
who  brings  the  action  was  himself  the  person  who  took  the  bill  with  the  indorse- 
ment by  one  partner  only,  and  was  informed  that  the  transaction  was  to  be  con- 
cealed from  the  other  ;  he  cannot  sue  the  partnership,  the  transaction  indicates 
that  the  money  was  for  the  partner's  own  use,  and  not  raised  on  the  partnership 
account,  therefore  shall  not  be  allowed  to  resort  to  the   security  of  the  partner- 


(«)  2  Enp.  R*p.  524. 
60  M92 


492  Of  Partnership  Contracts,  and  [Part  111. 

ship,  to  whom  in  the  original  transaction  he  neither  looked  or  trusted."     The 
plaintiff  was  accordingly  nonsuited. 

So,  an  authority  given  to  one  partner,  on  the  dissolution  of  a  partnership, 
to  receive  all  debts  owing  to,  and  to  pay  those  owing  from  the  late  partnership, 
does  not  authorize  him  to  indorse  a  bill  of  exchange  in  the  name  of  the  part- 
nership, though  drawn  by  him  in  that  name,  and  accepted  by  a-  debtor  of 
the  partnership  after  the  dissolution.  This  point  *was  settled  in  the  case  of  Abel 
and  another  v.  Sutton, (b)  which  was  an  action  brought  by  the  plaintiffs,  as 
indorsees,  against  the  defendant,  as  surviving  partner  of  one  Poyntcr,  upon  a 
promissory  note  for  685/.  lis.  dated  the  27th  of  May,  1799,  and  payable  six 
months  after  date,  drawn  by  Messrs.  Horton  and  Co.  in  favour  of  Sutton  and 
Co.  and  indorsed  in  the  partnership  name  of  Sutton  and  Co.  to  the  plaintiffs. 
The  defendant  and  Poynter  had  carried  on  business  in  partnership,  under  the 
firm  of  James  Sutton  and  Co.  On  the  31st  of  May,  1799,  the  partnership 
had  been  dissolved,  and  notice  of  the  dissolution  published  in  the  London  Ga- 
zette o£  the  1st  of  June  :  and  the  defence  was,  that  the  note  in  question  was  an 
accommodation  one,  created  after  the  dissolution  of  the  partnership,  though  it 
bore  date  before ;  and  the  partnership  name  put  on  by  Poynter  alone,  without 
authority  from  the  defendant;  or  that  even  if  it  existed  prior  to  the  dissolution, 
it  had  not  been  put  into  circulation  until  after.  The  indorsement,  "  James 
Sutton  and  Co."  was  in  the  handwriting  of  Poyntcr,  and  it  appeared  clearly 
that  it  had  not  been  made  till  the  28th  of  August,  nearly  three  months  after  the 
dissolution  of  the  partnership  :  but  it  was  stated,  and  admitted  to  be  the  custom 
of  trade,  that  when  bills  or  notes  had  a  long  time  to  run,  it  was  not  usual  to 
put  them  into  circulation  until  near  the  time  they  became  due,  or  when  they 
had  about  the  usual  time  of  discountable  securities  to  run. 

For  the  plaintiffs  it  was  contended,  that  where  a  partnership  had  been  dissolv- 
ed, and  one  of  the  partners  had  authority  given  him  to  settle  and  liquidate  the 
partnership  accounts,  and  due  notice  to  that  effect  was  given  (as  in  the  present 
case  in  the  same  advertisement  in  the  Gazette  which  contained  notice  of  the 
dissolution  of  the  partnership)  such  partner  had  a  right  to  use  the  partnership 
name  in  negotiating  bills  or  securities  which  existed  previous  to  the  dissolution, 
until  the  accounts  were  liquidated  :  and  Mr.  Barnwall,  one  of  the  special  jury- 
men, said,  it  was  very  customary  for  one  partner  to  use  the  partnership  name 
long  after  it  was  notoriously  dissolved,  in  negotiating  the  partnership  securi- 
ties, for  the  purpose  of  liquidating  the  partnership  accounts,  and  wi  nding  up 
the  concern  ;  and  observed,  that  many  bills  could  no.  be  received  if  the  part- 
nership name  was  not  upon  them.  For  the  defendant  it  was  argued,  that  as 
the  declaration  stated  Sutton  and  Co.  indorsed  the  note,  it  was  necessary  to 
show  that  the  partnership  existed  at  the  time  the  note  in  question  was  indorsed  ; 
and  he  cited  Dixon  v.  Evans,  6  Term  Rep.  57.  in  support  of  this  position. 
Lord  Kenyan  Ch.  J.  said,  "  If  a  fair  bill  existed  at  the  time  of  the  partnership, 

(b)  3  Esp.  Rep.  108.    Ses  also  KUgour  v.  Finlyson,  and  others,  1  H.  Bl.  155.  S.  P. 
*493 


Chap.  1.]         Of  the  Liability  of  Partners.  493 

but  is  not  put  into  circulation  until  after  the  dissolution,  all  the  partners  must 
join  in  making  it  negotiable.  The  moment  the  partnership  ceases,  the  part- 
ners become  distinct  persons  ;  they  are  tenants  in  *common  of  the  partnership  ■ 
property  undisposed  of  from  that  period  :  and  if  they  send  any  securities 
which  did  belong  to  the  partnership  into  the  world,  after  such  dissolution,  all 
must  join  in  doing  so.  I  even  doubt  much  if  an  indorsement  was  actually  made 
on  a  bill  or  note  before  the  dissolution,  but  the  bill  or  note  was  not  sent  into 
the  world  until    afterwards,    that  such  indorsement  would  be  valid." 

It  was  then  given  in  evidence  that   Poynler  had  received  money  for  securi- 
ties belonging  to  the  partnership,  which  had  been  thrown  into  the  general  fund, 
and  had  been  applied  in  liquidation  of  the  partnership   debts   after   the  dissolu- 
tion.    The  counsel  for  the  plaintiffs,  in  reply,  stated  two  positions  in  support 
of  the  plaintiffs  claim ;   1st,  that  if  bills  existed   before  the  dissolution  of  the 
partnership,  and  one  of  the  partners   had  authority  to  settle   and  liquidate  the 
partnership  accounts,  such  partners  had  a  right  to  put   the  partnership   name 
upon  such  bills  ;  and  that  a  bona  fide  holder  of  such  bill  would  have  a  right  to 
resort  to  all  the  partners:  2dly,  that  if  he  put  into  circulation  bills  in  the  partner- 
ship names,  upon  which  money  had  been  raised,  which  was  applied  in  liquidation 
of  the  partnership  debts,  it  was  money  had  and  received  to  the  use  of  all  the  part- 
ners,  and  all  would  be  liable.     Lord   Kenyon,  however,  (after  observing  that 
there  was  no  evidence  to  show  that  the  money  raised  upon  the  bill  in  question 
had  been  so  applied)  expressed  his  most  decided  dissent  to  both  positions  :  he 
said,  "  it  could  never  be  allowed  that  any  one   might  make   another  his   debtor 
against  his  will :  by  that  means,  a  man's  greatest  enemy,  by  paying  his  debts, 
might  make  himself  his  creditor.     The  most  mischievous  and  distressing  conse- 
quences   might  ensue  from  such  a  doctrine.     He  had  often  ruled  that  it  could 
not  be  done  ;  and  he  was  still  of  the  same  opinion.     With  respect  to  the  other 
position,  his  Lordship  said,  when  a  man  takes  a  partner,  he  takes  him  for  bet- 
ter, for  worse  ;  he  reposes  confidence    enough,   and  places  himself  sufficiently 
in  the  power  of  his  partner  during  the  partnership.     To  contend   that  this  lia- 
bility to  be   bound  by  the   acts  of  his   partner,  extends  to  a  time  subsequent  to 
the  dissolution,   was,    in   his   mind,  a  most  monstrous   proposition.     A  man  in 
that  case  could  never  know  when  he  was  to  be  at  peace,  and  retired  from  all 
concerns   of  the  partnership,  if  one  partner  was  to  have  the  power  of  binding 
another  long  after  the  dissolution  of  the  partnership.     I  am  of  opinion,   said  his 
Lordship,  if  a  bill  is  sent  into  circulation  after  the  dissolution  of  a  partnership, 
that,  beyond  all  controversy,  all  the  partners  must  join  in  the  indorsement ;  and 
one,  by  putting  the  partnership  name,  cannot  bind  the  rest."     The  jury  accord- 
ingly found  a  verdict  for  the  defendant. 

Where  two  partners  give  a  joint  bill  of  exchange  for  a  partnership  demand, 
which  is  not  paid  when  due,  and  the  holder  takes  a  separate  *bill,  or  security, 
of  one  of  the  partners,  without  the  knowledge  of  the  other,  the  latter  is  there- 
by discharged. (c) 

(c)  4  Esp.  Rep.  01.     5  Esp.  Rep.  122. 

*494    -195 


495  Of  Partnership  Contracts,  and        [Part  111. 

Upon  a   review  of  these  cases  the  principle  laid  down  is  clear,  namely,  that 
in  mercantile   transactions,  in  drawing,   accepting,  and  indorsing  of  a  bill  ol 
exchange  and  other  negotiable  instruments,   one  partner  may  bind  all  the  mem- 
bers of  the  firm.  And  therefore  if  a  bill  is  drawn  upon  the  partnership  in  their  usu- 
al style  and  firm,  and  it  is  accepted  by  one  of  the  partners,  it  certainly  binds 
the  partnership  to  the  payment  of  it.     In  the  absence  of  fraud,  an  indorsement, 
by  one  partner,   in    the  name  of  a  partnership   binds  all    the  firm.     And  it  is 
equally  binding  upon  the  partnership  whether  the  consideration  of  the  bill,  &c. 
be  for  the  joint  or  separate  account  of  the  partners,  provided  the  person  who  re- 
ceives the  bill  acts  bona  fide.  (155)  For  in  the  case  eoc  parte  Bonbonus,(d)  Lord 
Eldon,  Chancellor,  in  speaking  of  the  principle  upon  which  the  petition  in  that 
case   was  presented,   says,  "This  petition  is  presented  here  upon  a  principle 
which  it  is  very  difficult  to  maintain  ;  that  if  a  partner  for  his  own    accommo- 
dation  pledges  the  partnership,   as   the  money   comes   to  the   account  of  the 
single  partner  only,  the   partnership  is   not  bound.     I  cannot   accede  to   that* 
I    aoree,   if  it  is    manifest  to  the    persons   advancing   the  money,  that   it  is 
upon  the  separate  account,  and  so  that  it  is  against  good  faith  that  he  should 
pledge  the   partnership,  then  they   should  show,  that  he  had  authority  to  bind 
the  partnership.     But  if  it  is   in  the   ordinary  course  of  commercial  transac- 
tions, as  upon    discount,  it  would  be  monstrous   to  hold  that  a  man  borrowing 
money  upon   a  bill  of  exchange,   pledging  the  partnership  without  any  know- 
ledge in  the  bankers,  that  it  is  a  separate  transaction,  merely  because  that  money 
is  all  carried  into  the  books  of  the  individual,   therefore  the  partnership  should 
not  be  bound.     No  case  has  gone  that  length.     It  was  doubted  whether  Hope  v. 
Cust,(e)  was  not  carried  too  far;  yet  that  does  not  reach   this  transaction,  nor 
Shirreff  v.    Wilks,(f)  as  to  which  I  agree  with  Lord  Kcnyon  ;  that  as  partners, 
whether  they  expressly  provide  against  it   in  their  articles,  (as    they  generally 
do,  though  unnecessarily,)    or  not,   do  not  act  with  good  faith,  when  pledging 
the  partnership  property   for  the  debt  of  the  individual,  so  it  is  a  fraud  in  the 
person  taking  that  pledge  for  his   separate  debt.     The  question  of  fact,  wheth- 
er this  was  fair  matter  of  discount,   or   being   an   antecedent   separate  debt  of 
Rogers,  the  discount  was   obtained   merely  for  the  purpose   of  paying    that 
debt  by  the  application  of  the   partnership   funds,   which  question  is  brought 
forward  by  the  affidavits,  though  not  by  the  petition,  must  lead  to  farther  exam- 
ination.    If  the  partners  are  privy,  and  silent,  permitting  him  to  go  on   dealing 
in  this  way,   without   giving  notice,  the   question  will  be,   whether  subsequent 
approbation  is  not,  for  this  purpose,  *equivalent  to  previous  consent.  In  Fordyce's 
case,(g")  Lord  Thurlow  and  the  judges  had  a  great  deal  of  conversation   upon 
the  law  ;  and  they  doubted  upon  the  danger  of  placing  every  man  with  whom 


(d)  8  Ves.  540.  (/)  Ante,  491. 

(e)  Ante,  486.  (g)  Ante,  486. 


(155)  See  The  New  York  Firemen  Ins.  Co.  v.  Bennett,  5  Conn.  Rep.  574. 
*496 


Chap.  1.]         Of  the  Liability  of  Partners.  496 

the  paper  of  a  partnership  is  pledged,  at  the  mercy  of  one  of  the  partners,  with 
reference  to  the  account  he  may  afterwards  give  of  the  transaction.  There  is 
no  doubt,  now  the  law  has  taken  this  course,  that  if,  under  the  circumstances, 
the  party  taking  the  paper  can  be  considered  as  being  advertised  in  the  nature 
of  the  transaction,  that  it  was  not  intended  to  be  a  partnership  proceeding ;  as 
if  it  was  for  an  antecedent  debt,  prima  facie,  it  will  not  bind  them  ;  but  it  will 
if  you  can  show  previous  authority,  or  subsequent  approbation;  a  strong  case 
of  subsequent  approbation  raising  an  inference  of  previous  positive  authority. 
In  many  cases  of  partnership,  and  different  private  concerns,  it  is  frequently  ne- 
cessary for  the  salvation  of  the  partnership  that  the  private  demand  of  one  part- 
ner should  be  satisfied  at  the  moment ;  for  the  ruin  of  one  partner  would  spread 
to  the  others  ;  who  would  rather  let  him  liberate  himself  by  dealing  with  the 
firm.  The  nature  of  the  subsequent  transactions,  therefore,  must  be  looked  to 
as  well  as  at  the  time." 

And  in  Ridley  v.  Taylor,  (h)  it  was  determined,  that  if  one  partner  draw  or 
indorse  a  bill  in  the  partnership  firm,  it  will  prima  facie  bind  the  firm,  although 
passed  by  the  one  partner  to  a  separate  creditor  in  discharge  of  his  own  debt, 
unless  there  be  evidence  of  covin  between  such  separate  debtor  and  creditor,  or 
at  least  of  the  want  of  authority,  either  express  or  to  be  implied,  in   the  debtor 
partner,  to  give  the  joint  security  of  the  firm  for  his  separate  debt.     But  it  was 
held  that  no  sufficient  circumstance  appeared  in  this  case  to  raise  any  presump- 
tion adverse  to  the  separate  creditor,  taking  such  joint  security,  in  a  case  where 
the  bill  appeared  to  have  been  drawn  in  the  name  of  the  firm,   to  their  own  or- 
der, eighteen  days  before  the  delivery  of  it  to  the  separate  creditor,  and  to  have 
been  accepted  and  indorsed  before  such  delivery,  and  to  have  been  drawn  for  a 
larger  amount   than  the   particular  debt ;  and  where,  though  the   indorsement 
was  in  fact  made  by  the  hand  of  the  debtor  partner,  yet  it  did  not  appear  that 
that  fact  was  known  to  the  separate  creditor  at  the   time  ;  and  this  too  in  a  case 
where  direct  evidence  might  have  been  given  of  the  covin,  or  want  of  authori- 
ty, if  it  existed.     For  the  action  being  brought  by  the  separate  creditor  against 
the  acceptor,  either  of  the  partners  might  have  been  called  as  a  witness  by  the 
defendant,  to  disprove  the   authority  of  the  debtor  partner,  to  give  the  joint  se- 
curity ;  for  though,  if  the  separate  creditor  recovered   against  the  acceptor,  he 
would  have  his  remedy  over  against  the  firm  ;  yet  the  innocent  partner  would 
have  his  remedy  over  against  the  other  ;  and  the  bankruptcy  of  the  debtor  part- 
ner in  the  meantime  docs  not  *vary   the  question  of  competency.     And   Lord 
Ellenborough,   Ch.   J.  said,    "  Prima  facie    one  partner    is    bound  by   the   in- 
dorsement of   another   in   the   partnership   firm  ;    but   that  presumption   may 
be  cut    down    by    showing  collusion ;    but  the   difltculty  of  the  case   is,  that 
we  have  not  the  facts  sufficiently    before   us  to    show    that  collusion.     If  this 
were  distinctly  the  case  of  a  pledging  by  one  partner  of  a  partnership  security  for 
his  own    separate  debt,  without  the  authority  of  the  other  partner  ;  or  if  there 


(h)  13  East  Rep.  175.    See  also  Henderson  v.  Wild,  2  Camp.  561. 

*497 


497  Of  Partnership  Contracts,  and        [Part  III. 

existed  in  this  case  evident  covin  between  one  partner  and  the  holder  of  the 
partnership  security,  upon  which  the  action  is  brought,  in  order  to  discharge 
the  other  partner  without  his  knowledge  or  consent,  either  express  or  implied, 
for  the  private  advantage  of  the  parties  to  such  covinous  agreement,  we  should 
have  no  hesitation  to  pronounce  a  bill  drawn  and  indorsed  under  such  circum- 
stances, void  in  the  hands  of  the  covinous  holders,  upon  the  principle  laid  down 
in  the  case  of  Shirreffv.  Wtlks.(i)  But  upon  the  facts  stated,  such  does  not 
distinctly  appear  to  us  to  be  the  case  ;  nor  does  it  appear  that  there  was  any  such 
crassa  negligentia  on  the  part  of  the  plaintiffs,  in  not  inquiring  whether  Eu- 
bank, the  one  partner  with  whom  they  dealt,  was  authorised  to  dispose  of  this 
security  (which  had  originally  been  partnership  property)  as  his  own,  as  to  ren- 
der this  transaction  on  that  account  fraudulent,  and  therefore  void." 

But  the  authority  of  one  partner  to  bind  another  by  signing  bills  of  exchange 
and  promissory  notes  in  their  joint  names  is  only  an  implied  authority,  and  may 
be  rebutted  by  express  previous  notice  to  the  party  taking  such    security    from 
one  of  them,  that  the  other  would  not  be  liable  for  it :  and  this,  though  it  were 
represented  to  the  holder  by  the  partner  signing  such   security,  that  the  money 
advanced  on  it  was  raised  for   the  purpose  of  being   applied  to  the   payment 
of  partnership  debts  ;  and  though  the  greater  part  of  it  were,  in  fact,  so  applied. 
Nor  can  he  recover  against  the  other  partner  the  amount  of  the  sum  so  applied 
to  the  payment  of  the  partnership  debts    against    such    notice.     Thus,   in   the 
case  of  Lord  Gallway  v.  Matthew  &  Smithson,(k):  where  the  plaintiff  declared 
on  a  promissory  note  made  by  the  defendants  and  Whitehouse  deceased  on  the 
16th  December,  1805,  payable  sixty  days  after  date  to  the  plaintiff,  or  order,  for 
200Z.  value  received ;  and  also  on  the  common  money  counts.     It  appeared  on 
the  trial,  that  the  defendants  and   Whitehouse  were  partners  in  a  brewery  ;  and 
on  the  16th  December,  1805,  Matthew  wrote  to  the  plaintiff,  alleging  the  miscon- 
duct of  his  partner  Smithson,  in  consequence  of  which  the  creditors  of  the  part- 
nership had  insisted  on  the  payment  of  their  demands  ;  that  there  was  a  certain 
sum  to  pay  to  the  excise  in  a  few  days,  and  no  resource  but  to  apply  to  friends, 
and  therefore  requesting  of  the  plaintiff  to   lend  him  his  acceptance  for    *200/. 
at  two  months,  for  which   he  would  send  him  the  promissory  note  of  the   firm, 
payable  four  days  before  the   plaintiff's   acceptance   became   due.     In  conse- 
quence of  this  the  plaintiff  agreed  to  lend  his  acceptance,  and  Matthew  drew  the 
note  in  question,  which  was  signed  by  him  for  himself  and  his  partners.     Mat- 
thew immediately  procured  the  plaintiff's   acceptance  to  be  discounted,  and  ap- 
plied 180/.,  of  the  money  to  the  payment  of   the    partnership  debts,  reserving 
the  rest  for  himself.     But  the  note    in  question   not  being  paid  when    demand- 
ed of  the  defendants,  the  plaintiff,  after  renewing  his  acceptance  to  the    holder, 
was    ultimately  obliged  to  pay  it  after    Whitehoiise's  death.     And   now  Mat- 
thew having    let  judgment   go    by  default,   Smithson  defended    the    action  on 


(i)  Ante,  491. 

(k)  10  East  Rep.  264.    See  also  Roolh  v.  Q,uin,  7  Price's  Rep.  193.  S.  P. 

*49S 


Chap.  1]  Of  the  Liability  of  Partners.  49S 

the  ground  that  the  plaintiff  before  lie  took  the  note  in  question,  had  no- 
tice of  an  advertisement  then  recently  published  in  a  newspaper  by  Smith- 
son,  wherein  he  warned  all  persons  not  to  give  credit  to  the  defendant 
Matthew  on  his  (Smithsoii's)  account,  and  that  he  would  no  longer  be  liable  for 
drafts  drawn  by  the  other  partners  on  the  partnership  account.  The  court  de- 
termined that  the  plaintiff  could  not  recover,  and  a  nonsuit  was  entered  :  and 
Lord  Ellenborough  Ch.  J.  said,  "  The  general  authority  of  one  partner  to  draw 
bills  or  promissory  notes  to  charge  another  is  only  an  implied  authority. 
And  that  implication  was  rebutted  in  this  instance  by  the  notice  given  by  Smith- 
son  who  is  now  sought  to  be  charged,  which  reached  the  plaintiff,  warning  him 
that  Matthew  had  no  such  authority.  It  is  not  essential  to  a  partnership  that 
one  partner  should  have  power  to  draw  bills  and  notes  in  the  partnership  firm 
to  charge  the  others  ;  they  may  stipulate  between  themselves  that  it  shall  not 
be  done  ;  and  if  a  third  person,  having  notice  of  this,  will  take  such  a  security 
from  one  of  the  partners,  he  shall  not  sue  the  others  upon  it,  in  breach  of  such 
stipulation,  nor  in  defiance  of  a  notice  previously  given  to  him  by  one  of  them, 
that  he  will  not  be  liable  for  any  bill  or  note  signed  by  the  others." 

So  where  persons  ar  e  partners  in  a  particular  and  single  transaction  only, 
and  not  general  partners,  they  are  not  liable  even  to  a  bona  fide  holder,  on  a 
bill  issued  by  one  of  them  in  relation  to  a  different  concern.  Thus,  in  the  case 
of  Williains  v.  Thomas,  Hunter,  and  Latham,  (I)  where  it  appeared,  that  Messrs. 
Leake  and  List  drew  a  bill  for  1500?.  in  favour  of  the  plaintiff,  for  goods  fur- 
nished the  ship  Cecilia,  in  which  the  defendants  were  charged  as  acceptors. 
The  defendants  proved,  that  the  acceptance  was  made  by  the  defendant  Latham 
on  his  own  account.  The  defendants  were  partners  in  the  ship  Cecilia,  of  which 
the  defendant  Thomas,  was  captain,  and  had  guaranteed  Leake  and  List  to  se- 
cure to  them  the  money  for  the  outfit.  Lord  Ellenborough  Ch.  J.  said,  "  Leake 
and  List  could  give  no  better  title  to  the  holder  than  they  had  themselves  ; 
*they  could  not  draw  for  a  general  account,  but  for  the  account  of  the  ship  on- 
ly ;  they  could  not  bind  Thomas  by  drawing  a  bill  upon  him,  and  the  other  de- 
fendants, for  an  account  unconnected  with  the  ship."  The  plaintiff  was  accord- 
ingly nonsuited. 

So,  in  the  case  of  a  discount  of  a  bill  of  exchange  it  was  determined,  in  the 
case  of  Emly  v.  Lye,(m)  that  where  one  of  two  partners  drew  bills  of  exchange 
in  his  own  name,  which  he  procured  to  be  discounted  with  a  banker,  through 
the  medium  of  the  same  agent  who  procured  the  discount  of  other  bills  drawn 
in  the  partnership  firm  with  the  same  banker  ;  the  latter  has  no  remedy  against 
the  partnership,  either  upon  the  bills  so  drawn  by  the  single  partner,  or  for  mo- 
ney had  and  received  through  the  medium  of  such  bills  ;  though  the  proceeds 
were  carried  to  the  partnership  account ;  the  money  being  advanced  solely  on 
the  security  of  the  parties  whose  names  were  on  the  bills  by  way  of  discount, 
and  not  by  way  of  loan  to  the  partnership  ;  though  the  banker  conceived  at  the 
time  that  all  the  bills  were  drawn  on  the  partnership  account. 


(0  6  Esp.  Rep.  18.  (m)   15  East,  7. 

*499 


499  Of  Partnership  Co?ilracts,  and       [Part  III. 

So,  an  act  of  bankruptcy  committed  by  one  of  several  partners,  however  se- 
cret, ipso  facto  determines  his  power  to  make  use  of  the  name  of  the  firm  ;  and 
no  person  can  derive  any  benefit  or  right  of  action  against  the  firm,  upon  any 
bill  or  note  negotiated  by  the  bankrupt  partner.  Thus,  in  the  case  of  Thoma- 
son  v.  Frere  and  others,  (n)  in  which  it  appeared,  that  Thomason,  Underhill, 
and  Guest,  were  partners  in  trade  at  Birmingham,  and  being  indebted  to  the 
defendants  to  the  amount  of  1800/.  ;  and  creditors  upon  Gamble  and  Co.  for 
1450/.  Underhill  and  Guest,  on  the  11th  October  1807,  without  the  know- 
ledge of  Thomason,  who  was  then  abroad,  indorsed  to  the  defendants  a  bill 
drawn  by  Thomason,  Underhill,  and  Guest,  upon,  and  accepted  by  the  agent  of 
Gamble  and  Co.  for  this  1450/.  Underhill  and  Guest  had  on  the  7th  of  Octo- 
ber, 1S07,  committed  acts  of  bankruptcy,  upon  which  separate  commissions  is- 
sued on  the  19th.  The  bill  for  1450/.  became  due  on  the  6th  of  December, 
and  was  then  paid.  And  to  recover  this  money,  the  present  action  was  brought 
by  Thomason  and  the  assignees  of  Underhill  and  Guest,  The  house  of  Tho- 
mason, Underhill,  and  Guest,  was  still  indebted  to  the  defendants  beyond  the 
amount  of  the  sum  now  sought  to  be  recovered.  The  plaintiffs  were  nonsuit- 
ed :  bu;,  on  a  rule  Nisi  for  a  new  trial,  the  Court  held,  that  the  indorsement 
having  been  made  after  an  act  of  bankruptcy,  though  before  the  issuing  of  the 
commission,  and  though  for  the  purpose  of  paying  a  partnership  debt,  was  in- 
valid ;  and  they  inclined  to  think  that  this  action  being  brought  to  recover  the 
money  received  on  the  bill,  which  had  been  thus  wrongfully  indorsed,  the  de- 
fendants had  no  right  to  set  off  *their  demand  upon  the  firm  against  this  claim 
by  Thomason  and  the  assignees,  and  therefore  made  the  rule  absolute.  So, 
after  an  actual  dissolution  of  a  partnership  duly  notified  in  the  Gazette,  one  of 
the  parties  accepted  a  bill  in  the  name  of  the  partnership  firm,  drawn  after  the 
dissolution,  but  dated  before  it ;  it  was  held,  that  an  indorsee  who  took  the  bill 
without  notice  of  the  dissolution,  could  not  inforce  the  bill  against  the  other 
members  of  the  firm,  and  a  distinction  was  taken  by  the  Court  between  such 
case,  and  the  case  of  goods  supplied  after  the  dissolution  of  the  partnership, 
but  without  notice,  by  a  person  who  had  been  in  the  habit  of  supplying  goods 
to  the  firm.(o) 

So,  the  death  of  a  party  is  in  general  a  revocation  of  all  express  and  implied 
authorities  given  by  him.  But  where  A.,  being  member  of  a  partnership  con- 
sisting of  several  individuals,  drew  a  bill  of  exchange  in  blank  in  the  partner- 
ship firm,  payable  to  their  order,  and  having  likewise  indorsed  it  in  the  part- 
nership firm  delivered  it  to  a  clerk  to  be  filled  up  for  the  use  of  the  partner- 
ship, as  the  exigencies  of  business  might  require,  according  to  a  course  of 
dealing  in  other  instances  ;  and  after  A.'s  death,  and  the  surviving  partners  had 
assumed  a  new  firm,  the  clerk  filled  up  the  bill,  inserting  a  date  prior  to  A.'s 
death,  and  sent  it  into  circulation ;  it  was  held,  that  the  surviving  partners  were 


(n)  10  East  Rep.  418.   See  Ramsbottom  v.         (o)   Wrightson  v.  Pullan,  1  Stark.  375. 
Cater,  1  Stark.  228. 

♦500 


Chap.   ].]  Of  the  Liability  of  Partners*  500 

liable  as  drawers  of  the  bill  to  a  bona  fide  indorsee  for  value,  although  no  part 
of  the  value  came  to  their  hands,  (p) 

4.  Of  borrowing  Money,  &c] — Money  lent  to  one  partner,  whilst  he  is 
engaged  in  the  partnership  business,  in  order  to  defray  certain  expences  of  tra- 
velling, shall  be  deemed  a  partnership  debt,  and  recoverable  against  all  the 
partners.  Thus,  in  the  case  of  Rothwell  v.  Humphreys  and  Howell,(q)  which 
was  an  action  of  assumpsit  for  money  lent.  The  defendants  were  partners, 
carrying  on  the  business  of  linen-drapers  in  London;  the  plaintiff  Was  a  fus- 
tian manufacturer  at  Manchester.  Howell,  one  of  the  defendants,  had  gone 
down  to  Manchester  to  purchase  goods  in  the  way  of  his  trade,  and  had,  in  fact, 
purchased  from  the  plaintiff  to  the  amount  of  500/.  Being  about  to  return,  he 
borrowed  10/.  from  the  plaintiff  to  defray  his  expences  to  London;  and  having 
drawn  a  bill  on  the  house  in  London  for  the  amount  of  the  goods,  he  included 
in  it  the  10Z.  so  borrowed,  and  the  bill  was  drawn  for  510/.  Before  the  arrival 
of  the  goods  in  London,  Humphreys  and  Howell,  the  defendants,  became  insol- 
vent ;  and  the  plaintiffs  stopped  the  goods  in  transitu  ;  so  that  the  bill  was 
never  presented,  and  the  action  was  brought  to  recover  the  10/.  lent  only. 
The  defence  relied  upon  was,  that  the  action  was  brought  against  both  part- 
ners for  a  loan  of  money  admitted  by  the  evidence  to  have  been  made  to  one  of 
them,  and  which  therefore  could  not  be  supported.  But  Lord  Kenyon  Ch.  J.  said, 
"  That  *though  the  loan  of  money  was  to  one  of  the  partners,  it  was  lent  to  him 
while  employed  in  the  partnership  business,  and  on  its  account;  that  as  such  it  was 
competent  to  him  to  bind  the  partnership  to  the  payment  of  a  debt  so  contract- 
ed, and  which,  in  fact,  he  had  done,  by  including  the  money  lent  in  the  same 
bill  with  that  for  goods  sold,  clearly  on  the  partnership  account."  A  verdict 
was  accordingly  found  for  the  plaintiff.  It  has  also  been  held,  that  if  a  member 
of  a  firm  is  sent  abroad  to  manage  the  business  of  the  firm  and  to  procure 
homeward  consignments,  for  which  he  is  to  pay  by  the  proceeds  of  consign- 
ments, from  England,  and  by  money  raised  upon  bills  drawn  by  him  upon 
the  firm,  and  he  act  in  pursuance  of  such  directions,  the  firm  is  liable  for  mon- 
ey advanced  upon  such  bills,  (r)  But  where  several  persons  agree  to  form 
a  partnership,  and  that  each  shall  contribute  a  certain  share  of  the  capital ; 
and  any  of  the  persons  borrow  or  purchase  his  share,  which  is  by  him  after- 
wards brought  into  the  common  stock,  the  liability  for  payment  to  the  lender  or 
vendor  is  not  joint,  (s)  (156) 

5.  Of  the  Misapplication  of  Money  by  one  of  several  Partners.] 
— If  one  of  several  partners  receiving  money  or  goods  of  a  third  person,  in 
the  usual  course  of  business,  on  the  partnership  account,  in  order  to  be  applied 
to    a  particular  purpose,   wrongfully  misapplies  such    money  or  goods    to    his 


(»)  Usher  v.  Dauncey,  4  Campb.  97.  (s)    Vide   Saville    v.  Robertson,    4  Term 

(q)    I  Esp.  Rep.  406.  Rep.  720. 

(r)   Denton  v.  Rodie,  3  Campb.  496. 


(156)  See  Jaques  v.  Marquand,  6  Cowen,  497. 

61  *30l 


501  Of  Partnership  Contracts,  and  [Part  III. 

own  private  use,  all  the  partners  are  answerable.     Thus,  in  the  case  against 
Layfield  and  others, (t)    which  was  an   action  on   the   case   for  money  had  and 
received  to  the  plaintiff's  use,  it    appeared,  upon  evidence,  that   Layfield  and 
the  other  defendants  were  bankers  and  partners,  and  that  the  plaintiff  had  given 
Layfield  20.?.  for  which  he  received  a  ticket  in  the  double  exchange  lottery,  and 
Layfield  undertook   to  pay  what  benefit   should  happen    thereupon ;  that  the 
ticket   came  up    a  40/.   benefit ;  and   for  that  money   the   action  was  brought. 
It  was  objected  for  the  defendants,  that  the  action  was  brought  against  Layfield 
and  his  partners ;  whereas  it  did  not   appear  that  any  of  them  had  undertaken 
to  be  trustees  in  the  lottery,  except  Layfield,  and  therefore  he   only    ought  to 
be  charged,  and  not  his  partners.     But  Holt  Ch.  J.  answered,  that  it  appeared 
they  were  partners  in  their  trade,  and  goldsmiths,  and  the  adventurers  put  their 
money  in  upon   the  credit  of  several    goldsmiths,    that  had  undertaken  to  pay 
the   benefits  ;  and   it  should  be  presumed  the  act   of  Layfield    was  the   act   of 
the  other,  and  should  bind  them,    unless  they  could   show  a  disclaimer,  and  a 
refusal  to  be  concerned  in  it.     Accordingly    the  plaintiff  had  a  verdict  for  40/. 
So,  if  two  persons   are  in  partnership  as  atlornies  and  conveyancers,  and  one 
of  them  receives  money  to  be  laid  out  on  mortgage,  but   misapplies  it,  the  other 
is  liable  for  the  amount.     This  was  determined  in  the  case  *of  Willet  v  Cham. 
bers,(u)  which  was  an  action  of  asswnpsit  for   money  had  and  received  to  the 
plaintiff's  use,  brought  against  the  defendant,  as  surviving  partner  of  one  Dad- 
ley.     At    the  trial   a  verdict  was  found  for  the   plaintiff,  damages  480/. :  and 
upon  a  rule  to  show  cause  why  a    new   trial    should  not  be  granted,  the  facts 
appeared  to  be  as  follow :  that,  prior  to  any  partnership  between  the   defendant 
and  Dadley,   who  was  an  attorney  and   conveyancer,  at    Coventry,  the  latter, 
in  the  year  1771,  received  of  a  Mr.  Bindley  the  sum   of  350/.,  to  be  laid  out 
on  a  real  security.      Dadley  accordingly  furnished    him  with  a  mortgage  from 
a  Mr.    Hughes  to  that  amount ;  which,  as  it  afterwards   appeared,  Dadley  had 
forged.     At    Midsummer,   1776,   Dadley  and    Chambers  entered    into   partner- 
ship ;   shortly   after  which  Bindley  wanted  to  call  in  his  money.     The  pretend- 
ed mortgagor  was  supposed  at  the   same  time  to  want  a  further  sum   of  150/., 
which  added  to  the  original  mortgage  money,   made  together  the  sum   of  500/. 
The  plaintiff,   Willet,  was  ready  to  advance  this  sum ;  and,  in  consideration  of 
his  doing  so,   an  assignment  was    made   to  him  of  the  pretended  mortgage  be- 
fore made   to    Bindley,  as  to    180/.    part  of  this   sum  of  500/.      Willet  paid  it 
into  Dadley^s  office  to  Chambers,  who  gave  the  following  receipt  for  it :  "  Re- 
ceived of  Mr.   Benjamin    Willet,  the  sum  of  180/.,  for  which  I  promise  to  ac- 
count to  him  on  demand.      Chambers.'1'' 

Dadley  was  not  at  home  when  this  sum  was  paid.  Some  time  after,  the 
plaintiff  called  at  the  office  to  pay  300/.  more,  part  of  the  remaining  320/.  due. 
Dadley  being  then  at  home,  Willet  paid  the  money  to  him  ;  and  in  return, 
Dadley  gave  him  the  following  receipt :  "  Received  on   account  of  Mr.  Benja- 


(t)  1   Salk.  292.    Holt's  Rep.  434.  S.  C.        («)  Cowp.  814. 
*502 


Chap.  1.]  Of  the  Liability  of  Partners.  502 

min  Willct,  300/.  the  remainder  of  the  money  to  be  paid,  being  20/.  Dudley." 
It  was  admitted  that  the  defendant,  Chambers,  was  in  no  respect  privy  to  the 
forgery  ;  and  that  no  procuration  money  was  paid  either  to  Chambers  or  Dad- 
ley.  But  the  Court  refused  the  rule,  and  determined  this  to  be  a  partnership 
transaction,  and  that  the  defendant  was  answerable  for  the  act  of  his  part- 
ner. 

So,  where  one  of  several  partners  receives  the  amount,  of  a  parcel  of  goods 
sold  by  him  to  a  purchaser,  and  afterwards  applies  the  purchase  money  to  his 
own  private  use,  and  the  goods  are  not  delivered,  all  the  firm  are  liable  ;  or 
the  purchaser  may  sue  that  one  alone  at  his  election.(u) 

So,  where  one  of  two  partners,  being  a  trustee,  applied  trust  money  to  the 
use  of  their  joint-trade  with  the  privity  of  the  other  partner  ;  and  they  after- 
wards separated,  and  by  agreement  the  partnership  effects  were  assigned  over 
to  the  first  partner,  who  took  upon  himself  the  payment  of  the  joint-debts  ;  this 
was  held  to  be  no  payment  in  discharge  of  the  other  partner,  but  that  both  were 
liable  to  make  good  the  trust-money.  (t») 

*6.  Of  the  Effect  of  Smuggling  by  One  of  several  Partners.] — An 
action  cannot  be  maintained  by  several  partners  for  goods  sold  by  one  of  them 
living  in  Guernsey,  and  packed  by  him  in  a  particular  manner,  for  the  pur- 
pose of  smuggling,  though  the  other  partners,  who  resided  in  England, 
knew  nothing  of  the  sale  ;  for  it  is  a  contract  by  subjects  of  this  country, 
made  in  contravention  of  the  laws :  and  the  Court  said  that  the  case 
must  be  considered  in  the  same  light  as  if  all  the  parties  lived  in  Eng- 
land, (x) 

7.  Of  the  Liability  of  all  the  Partners  of  a  firm  for  Representa- 
tions and  Declarations  made  by  One  of  them.] — If  one  of  several  part- 
ners falsely  represent  to  a  customer  of  the  firm,  that  goods,  which  had  been 
sent  to  them  for  sale,  had  been  actually  sold  at  a  profit,  and  had  accounted  to 
the  employer  for  part  of  the  proceeds,  all  the  members  are  liable  to  pay  the 
residue  of  the  proceeds.  Thus,  where  A.  had  employed  B.  and  C,  who 
were  partners  as  wine  and  spirit  merchants,  to  purchase  wine  and  sell  the 
same  upon  commission. ;  C.  the  managing  partner,  represented  that  he  had 
made  the  purchases,  and  that  he  had  sold  a  part  of  the  wines  so  purchased 
at  a  profit ;  the  proceeds  of  such  supposed  sales  he  paid  to  A.  and  rendered 
accounts,  in  which  he  stated  the  purchases  to  have  been  made  at  a  certain  rate 
per  pipe.  In  fact  C.  had  neither  bought  nor  sold  any  wine.  The  transactions 
were  wholly  fictitious,  but  B.  was  wholly  ignorant  of  that.  Upon  the  whole 
account  a  larger  sum  had  been  repaid  to  A.,  as  the  proceeds  of  that  part  of 
the  wine  alleged  to  be  resold,  than  he  had  advanced  ;  but  the  other  part  of  the 
wine,  which  C.  represented  as  having  been  purchased,  was  unaccounted  for. 
Held,  that  B.  was  liable  for  the  false  representation  of  his  partner ;  and  that 


(v)  Hudson  v.  Robinson,  4  Maule  &  Scl.  475.     Rep.  414. 

(w>)  Smith  v.  Jameson,  5  Term.  Rep.  601.         (x)  Biggs  v.   Lawrence,  ante,  177. 
See  also  ex  parte    Watson,  2  Ves.  &.  Beam. 

*503 


503  Of  Partnership   Contracts,  and  [Part  III. 

A.  was  entitled  to  retain  the  money  that  had  been  paid  to  him  upon  these  fic- 
titious transactions,  as  if  they  were  real.  Held  also,  the  supposed  purchases 
having  been  represented  to  have  been  made  at  a  certain  specified  rate  per  pipe, 
that  A.  might  maintain  an  action  for  money  had  and  received  to  recover  the 
specific  sums  advanced  for  the  number  of  pipes  of  wine  unaccounted  for.(y)(157) 

But  the  declarations  by  one  of  two  partners  prior  to  the  partnership,  is  not 
admissible  evidence  to  charge  both  jointly. (z)(  158) 

8.  Of  Executing  Deeds,  and  Releasing  Debts,  &c] — One  partner 
cannot  bind  his  co-partner  by  deed  or  writing  under  seal,  without  an  express 
authority  from  him   by  writing  under  seal.(a)(159)     It  has  however,  been  de- 


(y)  Rapp  v.  Latham,  2  Barn.  &  Aid.  795.         (a)    Harrison   v.    Jackson,   7   Term.  Rep. 
(z)    Catt  v.  Howard,  3  Stark.  23.  207. 

(157)  A  partnership  is  not  liable  for  a  fraud  committed  by  one  of  the  co-partners.  Pierce 
v.  Jackson,  6  Mass.  Rep.  242.     See  Sherwood  v.  Marwick,  5  Greenl.  295. 

(158)  The  admission  of  one  partner,  after  the  dissolution  of  the  partnership,  either  of 
an  account,  or  of  any  fact,  cannot  be  given  in  evidence  to  affect  the  rights  of  any  other  part- 
ner of  the  firm.  Baker  v.  Stackpoole,  9  Cowen,  420.  Hackley  v.  Patrick,  3  J.  R,  536.  Wal- 
den  v.  Sherburne,  15  J.  R.  409.  Hopkins  v.  Banks,  7  Cowen,  650.  Shelton  v.  Cocke,  3  Munf. 
191.  But,  as  an  exception  to  the  preceding  rule,  such  admission  may  be  given  in  evidence  to 
remove  the  bar  of  the  statute  of  limitations.  Hopkins  v.  Banks  ;  Shelton  v.  Cocke,  ut  su- 
pra. So,  an  acknowledgment,  by  one  partner,  previous  to  a  dissolution,  of  a  partnership 
debt,  will  have  the  effect  to  remove  the  operation  of  the  statute.     Smith  v.  Ludloxc,  6  J.  R. 

267. 

(159)  See  Clement  v.  Brush,  3  J.  C.  180.  Tuttlev.  Eskridge,  2  Munf.  330.  Buchannan  v. 
Curry,  19  J.  R.  137.  Me  Bride  v.  Hagan,  1  Wend.  326.  Karthunsv.  Ferrer,  1  Peters,  222. 
Tom  v.  Goodrich,  2  J.  R.  213.  Green  v.  Beals,  2  Caines,  254.  Ludlow  v.  Simond,  2Caines  C. 
E.l.  In  Mc  Bridge  v.  Hagan,  1  Wend  334.,  Savage,  Ch.  J.  says, "  It  seems  to  be  well  settled, 
that  one  partner  cannot  bind  his  copartner  under  seal.  He  may,  indeed,  discharge  a  co- 
partnership debt,  under  seal;  but  that  authority  arises  not  from  any  capacity  to  bind  his 
copartner  in  a  manner  to  impose  an  obligation  upon  him;  but  from  the  power  which  each 
partner  has  over  the  partnership  property,  and  partnership  debts."  The  distinction  here 
taken,  is  founded  in  reason  and  general  policy,  and  is  supported  by  all  the  authorities.  In  Cle- 
ment v.  Brush,  ut  supra,  it  was  decided,  that  a  sealed  note  given  by  the  defendant,  in  the 
name  of  himself  and  partner,  though  the  instrument  was  void  as  to  the  partner,  it  was 
valid  against  the  defendant,  and  extinguished  the  partnership  debt  for  which  it  was  given. 
So,  where  one  had  become  surety  for  a  partnership  debt,  in  a  bond,  with  one  of  the  firm, 
and  having  been  compelled  to  pay  the  bond,  brought  his  action  against  the  firm  for  the  mo- 
ney so  paid  ;  it  was  held,  that  the  bond  extinguished  the  partnership  debt,  and  converted  the 
demand  into  an  individual  one  ;  and  therefore,  the  plaintiff's  only  remedy  was  against  his 
co-obligor.  Tom  v.  Goodrich,  2  J.  R.  213.  But,  where  one  of  two  partners  executes  a  bond 
for  the  payment  of  duties  on  goods  imported  on  the  partnership  account,  with  surety, 
and  the  surety  advances  money  to  his  co-obligor  to  pay  the  bond,  the  surety  may 
maintain  an  action  against  the  firm  for  the  money  ^so  advanced  ;  although,  if  he  had  taken 
up  the  bond  himself,  his  remedy  would  have  been  against  the  co-obligor  alone.  Walden  v. 
Sherburne,  15  J.  R.409.  So,  a  release  of  a  partnership  debt,  by  one  partner,  under  seal, 
is  binding  on  all  the  partners.  Pierson  v.  Hooker,  3  J.  R.  68.  Bxdkley  v.  Dayton,  14  J.  R. 
387.  And  although  one  partner  cannot  bind  his  copartner,  by  bond  or  other  writing,  under 
seal,  to  abide  the  award  of  arbitrators  ;  yet,  where  an  award  is  made  pursuant  to  a  submis- 
sion thus  executed  by  one  partner,  who  accepts  the  amount  awarded  in  favour  of  the  copart- 
nership, and  indorses  upon  the  award  a  receipt  in  full,  this  will  bar  the  partnership  claim  ;  for 
it  operates  as  a  release  by  one  partner,  or  as  an  accord  and  satisfaction.  Buchanan  v. 'Curry,  19 
J.  R.  137.  If  one  of  two  partners,  without  authority,  execute  a  joint  bond  and  warrant  of 
attorney,  in  the  names  of  both,  they  are  void  as  to"  the  partner  who  did  not  sign  them; 
and  if  judgment  be  entered  thereon,  it  will  not  be  vacated  on  application  of  him  who  execut- 
ed them,  nor  on  the  application  of  the  other  ;  but  the  court  will  direct  that  the  execution  be 
not  served  on  him,  and  that  only  the  interest  of  the  other  partner  in  the  joint  funds  shall  be 
liable  to  satisfy  the  judgment.  Green  v.  Beals,  3  Caines,  254.  But  where  one  of  two 
partner*  executes  a  bond,  to  which  he  subscribes  the  partnership  name,  and  affixes  one  seal, 


Chap.l.]  Of  the  Liability  of  Partners.  503 

termined,(6)  that  a  bill  of  sale  executed  by  one  partner,  with  the  consent  and 
in  the  presence  of  the  other,  is  binding  *upon  both  the  partners.  And  so  the 
release  of  debts  by  deed  of  composition,  &c.  is  said  to  be  an  exception  to 
the  general  rule.(c)(160) 

3.  OF  A  CHANGE  OR  DISSOLUTION  OF  A  PARTNERSHIP :  AND  OF  THE 
LIABILITY  OF  A  RETIRING  PARTNER  EITHER  FOR  WANT  OF  PROP- 
ER  NOTICE,  OR  BY  SUFFERING  HIS  NAME  TO  BE  USED,  &c. 

Upon  a  change  or  dissolution  of  a  partnership  by  agreement  or  otherwise 
between  partners,  it  is  the  duty  of  the  firm,  in  order  to  avoid  future  liability,  to 
give  notice,  or  send  a  circular  of  the  fact,  to  ali  persons  with  whom  they  may 
have  had  dealings  ;  for  without  such  notice,  or  other  proof  of  the  knowledge  of 
the  fact,  all  the  partners  will  remain  liable  to  every  person  who  had  prior  deal- 
ings with  them,  for  all  debts  subsequently  contracted  by  any  of  the  firm  carry- 
ing on  the  same  business. (161)     And  a  notice  in  the  Gazette  will  not  be  suffi- 


(b)    Ball    v.    Dunsterville,  4  Term.  Rep.         (c)  Vide  Hawkshcnc  v.    Parkins    Swanst 
313.  542. 


ne 


the  other  partner  having  previonsly  read  and  approved  the  bond,  consents  that  his  copart- 
ner should  execute  it  for  both,  and  being  in  the  room  at  the  time  of  the  execution,  though 
not  actually  signed  and  scaled  in  his  immediate  presence  ;  held,  that  this  was  such  an  ex- 
ecution of  the  bond,  as  to  make  it  the  deed  of  both.  Mackuy  v.  Bloodgood  9  J.  R.  285. 
See  Ludloio  v.    Simond,  2  Caines  C.E.  1. 

(160)  See  Bruen  v.  Marquand,   17  J.    R.  58.     Each  partner  has  full  control  over  the  part- 
rship   property,  with  the  power  of  disposing  of  it  for  partnership  purposes  :  Thus,    one 

partner  may  transfer  or  assign  a  chose  in  action,  or  any  other  partnership  property,   for  the 
purpose  of  paying  the   partnership   debts.       Quiner  v.   The  Marblehead  Social  Ins.   Co.  10 
Mass.   Rep.  476.     Lamb  v.    Durant,   12  Mass.    Rep.   54.     Harrison  v.   Sterry,    5  branch 
289.  Pierpont  v.    Graham,  C.  C.  April,  1820.  MS.  Rep.  Whart.  Dig.  453.     But,  it  seems, 
that  the  assignment  cannot  be  made  by  an  instrument  under  seal.     Harrison   v.  Sterry,  ut 
supra.     But,  in  New-York,  it  has   been  decided,  that  a  release  of  a  partnership  debt,  under 
seal,  by  one  partner,   in  the  partnership  name  is  binding  upon  all  the  partners.     Pierson  v. 
Hooker,  3  J.  R.  68.     See  Bulkley  v.  Dayton,  14  J.  R.  387.     If  one  of  two    partners   release  a 
debt  due  to  the  partnership,  although  he  has  no  authority  to  release  more  than  his  own  moiety 
the  whole  debt  is  discharged.     Salmon  v.   Davis,  4  Binn.  375.     So,    a  receipt  by  one  of  sev- 
eral partners,  of  money,  or  any  other  property,  having  relation   to  the  partnership  concerns 
is  obligatory   on    the   partnership.     Brown    v.   Lawrence,  5  Conn.  Rep.  397.     See   Scott  v 
Trent,    1    Wash.  77. 

(161)  See  Lansing  v.  Gaine,  2  J.  R.  300.  Graves  v.  Merry,  7  Cowen,  701.  Martin  v. 
Walton,  1  M'Cord,  16.  In  this  case,  it  was  intimated  by  the  court,  that  the  rule  requiring  spe- 
cial notice  of  the  dissolution  of  a  copartnership  to  be  given  to  each  person  who  has  bad  deal- 
ings with  the  firm  was  too  broad,  and  could  not  be  supported  either  by  reason  or  authority". 
The  court  said,  that  notice  published  in  a  gazette  is  conclusive  on  those  who  have  had  no' 
dealings  with  the  copartnership;  but  as  to  such  as  have  had  dealing,  it  ..hall  not  be  so 
considered,  unless,  from  the  circumstances  of  the  case,  it  appear,  satisfactorily,  that  the 
party  had  actual  notice  of  the  dissolution  :  And  of  this,  the  jury  are  the  proper  judges  In 
pursuance  of  this  principle,  it  has  been  held,  that  where  notice  of  the  dissolution  of  a 
partnership  was  published  jn  a  gazette  taken  by  a  bank,  with  which  the  partners  had 
had  previous  dealings,  such  publication  was  sufficient  notice  to  the  bank,  of  the  dissolution 
Bank  oj  South  Carolina  v.  Humphreys  <£•  Matthews,  1  M'Cord,  388.  A  partner  having  with' 
drawn  from  a  mercantile  company,  and  being  afterwards  erroneously  included  in  a  suit 
against  a  new  company  formed  by  the  other  partners,  may,  in  equity,  be  relieved  a<niin<=t 
a  judgment  rendered  in  such  suit,  on  the  ground,  that  one  of  the  company,  by  assurances 
that  the  matter  should  be  adjusted,  prevented  him  from  making  defence  at  law  Lee  v 
Baird,  4  Hen.  &  Munf.  453.  See  Chisholm\.  Anthony,  2  Hen.  &Munf.  13. 

#504 


504  Of  Partnership   Contracts,  and        [Part  II T. 

cient,  unless  the  knowledge  of  it  can  be  brought  home  to  the  individual,  who 
seeks  to  bind  the  retiring  partner.  Thus,  in  the  case  of  Graham  and  others 
v.  Hope  and  others,(fZ)  where  it  appeared  that  the  defendants  had  been  in  part- 
nership together,  and  the  plaintiff  had  sold  them  goods  as  partners.  Afterwards 
the  partnership  was  dissolved,  and  notice  of  the  dissolution  given  in  the  Lon- 
don Gazette ;  and  after  this  notice,  the  plaintiff  had  sold  and  delivered  the 
goods,  for  which  the  present  action  was  brought.  The  defendants  called  wit- 
nesses, who  swore  that  a  notice  had  been  given  to  the  agent  of  the  plaintiff 
that  the  partnership  was  dissolved.  The  agent  on  the  contrary  positively 
swore  that  he  had  received  no  such  notice.  Lord  Kenyon  Ch.  J.  before  whom 
the  cause  was  tried,  told  the  jury,  that  "  the  cause  depended  entirely  on  the 
credit  they  gave  to  the  witnesses  on  the  one  side  and  the  other.  The  Gazette, 
he  thought,  was  not  of  itself  sufficient  notice  to  the  plaintiff  of  the  dissolution 
of  the  partnership.  His  lordship  said,  he  did  not  say  this  for  the  purpose  of 
this  cause  merely,  but  meant  to  lay  it  down  as  a  general  rule  to  govern  the 
conduct  of  all  men.  Many  people  there  were  in  this  kingdom  who  never  saw 
a  Gazette  to  the  day  of  their  deaths,  and  very  mischievous  would  be  the  con- 
sequences, if  they  were  bound  by  a  notice  inserted  in  it.  It  was  incumbent 
on  persons  dissolving  a  partnership,  to  send  notice  of  such  dissolution  to  all  the 
persons  with  whom  they  had  dealings  in  partnership."  The  jury  believing  the 
defendant's  witnesses,  gave  a  verdict  for  the  defendant. 

But  a  notice  in  the  Gazette  of  the  dissolution  of  a~partnership  is  a  sufficient 
notice  to  all  persons  who  have  had  no  previous  dealings  with  *the  firm.  (162) 
Thus,  in  the  case  of  Godfrey  v.  Turnbull  and  another,  (e)  which  was  an  action 
brought  by  the  plaintiff,  as  indorsee  of  a  promissory  note  against  the  defendants 
as  the  makers  of  it.  The  defendants  had  been  partners  in  trade,  but  the  part- 
nership had  been  dissolved  prior  to  the  date  of  the  note.  And  the  note  was 
made  by  the  defendant  Macaulcy  only,  after  the  dissolution  of  the  partnership, 
who  had  put  their  joint  names  on  it  without  any  authority  from  him.  It  was 
dated  the  6th  of  April,  1793,  but  on  the  19th  of  the  March  preceding,  notice 
of  the  dissolution  of  the  partnership,  dated  the  15th,  had  appeared  in  the  Ga- 
zette. The  question  was,  whether  the  notice  given  in  the  Gazette  was  sufficient, 
so  as  to  exonerate  the  defendant  Turnbull.  Lord  Kenyon  Ch.  J.  said  :  "  In 
general,  if  a  partner  gives  a  note  in  the  partnership  name,  all  the  partners  are 
bound  by  it ;  and  that  is  the  case,  even  if  given  after  the  actual  dissolution  of 
the  partnership,  if  that  was  not  sufficiently  notified,  and  the  party  who  took  the 


(d)   Peake's  Cas.  N.    P.  154.     See  also         (e)  1  Esp.  Rep.  371.    See    also  Parkin  v. 
Gorham  v.  Thompson,  lb.  42.  S.  P.  Carruthers,  lb.  248. 


(162)  See  Martinv.  Walton  «$•  Co.  1  M'Corrl,  16.  Lansing  v.  Gaine  <$•  Ten  Eyck,  2  J.  R. 
300.  Graves  v.  Merry,  6  Cowen,  701.  A  partnership  existing  between  a  citizen  of  the  United 
States  and  a  citizen  of  a  foreign  power,  is  dissolved  by  the  breaking  out  of  war  between  the 
two  countries ;  and  if  such  partnership  expire  by  its  own  limitation,  during  the  war,  pub- 
lic notice  of  the  dissolution  need  not  be  given.  Griswold  v.  Waddington,  15  J.  R.  57.  S.  C. 
in  error,  16  J.  R.  438.     Seaman  v.  Waddington,  16  J.  R.  570. 

*505 


Chap.  1.]  Of  the  Liability  of  Partners.  505 

note,  took  it  on  the  faith  of  the  partnership  name.  A  secret  dissolution  of  a 
partnership  cannot  discharge  the  partners  ;  but  if  the  dissolution  is  notified  in  the 
ordinary  and  usual  way,  as  it  is  the  only  mode  by  which  the  fact  of  the  dissolu- 
tion can  be  promulgated  to  the  world,  at  least  to  those  who  have  had  no  pre- 
vious dealing  with  the  partners,  it  seems  sufficient,  at  least,  to  be  left  to  the  jury 
from  thence  to  infer  notice.  In  many  cases,  notice  in  the  Gazette  is  sufficient 
to  subject  a  party  to  penalties,  as  in  the  cases  of  smuggling  and  outlawries.  So, 
in  the  case  of  bankrupts,  notice  in  the  Gazette  is  sufficient  for  every  purpose. 
In  the  present  instance,  there  is  no  proof  of  any  actual  notice  to  Mr.  Godfrey, 
the  plaintiff,  but  the  publication  in  the  Gazette  is  proved,  antecedent  to  his  tak- 
ing the  note.  The  jury  are  to  judge  from  the  practice  in  the  usual  course  and 
ordinary  mode  of  business.  Notices  are  to  be  found  in  every  Gazette  of  the  dis- 
solution of  partnerships ;  which  seems  to  point  out  that  as  the  mode  adopted  by 
the  world  for  notifications  of  this  sort,  and  therefore  every  prudent  man  in  busi- 
ness ought  to  consult  them."  The  jury,  under  this  direction,  found  a  verdict 
for  the  defendant,  Turnbull. 

So  if,  after  a  dissolution  of  partnership,  where  notice  was  published  in  the 
London  Gazette,  and  also  a  notice  or  circular  was  sent  round  to  the  customers 
of  the  house,  one  of  the  partners  carries  on  the  business  under  the  old  firm,  and 
draws  and  accepts  bills  in  that  firm,  the  other  partners  are  not  bound   to  apply 
for  an  injunction  against  his  doing  so,    and  are   not  liable  upon  such  bills   to  a 
a  person  ignorant  of  the  dissolution  of  the  partnership.     Thus,  in  the  case  of 
Newsome  v.  Thomas  Coles  and  three  others,  (f)  which  was  an  action  upon  the 
following  bill  of  exchange  drawn  by  H.   Vos,  upon    the    defendants,  under  the 
firm  of  Messrs.  Thomas  Coles  and  Sons,  dated  "  London,  20th  March,    1810. 
Four  months  *after  date  pay  to  my  order  2830Z.  16s.  value  received.     Accept- 
ed Thomas   Coles  and  Sons."      Thomas  Coles  and   his    three    sons,  William 
George,  and    Charles,  the  present  defendants,  formerly  carried  on  business  in 
partnership  together,  under  the  firm  of  "  Thomas  Coles  and  Sons."     The  father 
died  in  1805,  and  the  three  sons  continued  to  carry  on  business  under  the  same 
firm  till  the  year  1808.     George  and  Charles  then  withdrew,  and  established  a 
new  business  under  a  new  firm.     Notice  of  the  dissolution  of  partnership  was 
published  in  the  London  Gazette,  and  was  sent  round  to  the  correspondents  of 
the  house.      William   Coles  continued  the  old  business  by  himself  under  the  old 
firm,  and  accepted  the  bill  in  question,  drawn  upon  Messrs.  Thomas  Coles  and 
Sons.     The  plaintiff  had  not  had  any  dealings  with  the  partnership  of  "  Thom- 
as Coles  and  Sons,"  when  composed  of  the  three  brothers ;  and  when  he  took 
the  bill  in  question,   he  did  not  know    that    the  partnership  had  been  dissolved. 
Lord  Ellcnborough  Ch.  J.  said,  "  It  is  not  pretended  that  the  defendants  George 
or  Charles  Coles  ever  interfered  with  the  business    carried  on  by  William  after 
the  dissolution  of  the  partnership,  or  by  any  act   whatsoever  authorised  him  to 
use  the  firm  under  which  they  had  traded  together.     I  am  therefore  of  opinion 
that  they  are  not  liable  for  that  firm,  being  used  by  him  without  their  authority. 


(/)  2  Campb.  Rep.  617. 

*506 


503  Of  Partnership  Contracts,  and        [Part  III. 

Ample  notice  had  been  given  of  the  dissolution  of  the  partnership ;  and  after 
that  it  was  the  duty  of  persons  taking  securities  in  the  name  of  Thomas  Coles 
and  Sons,  to  enquire  who  were  designated  by  that  firm.  The  plaintiff  might 
not  know  of  the  dissolution,  but  he  had  the  means  of  knowing,  and  the  part- 
ners who  retired  could  not  remain  liable  for  his  ignorance.  I  think  they  were 
not  bound  to  apply  to  the  Lord  Chancellor  for  an  injunction,  or  to  take  any 
notice  of  the  firm  which  their  brother  might  happen  to  use.  They  were  dis- 
charged from  all  liabilty  for  his  acts  by  the  dissolution  of  the  partnership,  and 
the  notice  which  was  communicated  of  that  event."  The  plaintiff  was  accor- 
dingly nonsuited. 

But  in  the  case  of  Williams  v.  Keats  and  Archer  (g)  which   was   an  action 
by  the  indorsees  of  a  bill  of  exchange  against  the  acceptors  :   and  it  appeared 
that  the  bill,  although  bearing  the  date    of  December  23,   1816,  had,  in  fact, 
been  drawn  in  the  latter  end  of  February,  1817,  and  had  been  accepted  by  Keats, 
for  the    accommodation  of  Ambrose,  who  knew  that  the  partnership    between 
the  defendants  had  been  previously  dissolved.     Ambrose  kept  it  in  his  posses- 
sion till  March,  and  then  negotiated  it  with  the  plaintiffs  for  value.     Neither  of 
the  defendants  had  received  any  value  for  it.     On  the  13th  of  January,  1817, 
it  was  agreed  that  the  co-partnership  between  the  defendants  should  be   dissolv- 
ed;  and  notice  was  given  in  the  Gazette  of  the  17th  of  January,  1817,  announc- 
ing that  the  dissolution  had  taken  place  on  the  31st  of  December  preceding.     *No 
particular  notice  of  the  dissolution  of  partnership   was    brought    home  to  the 
plaintiffs,  and  it  appeared  that  the  names  of  Keats,  Archer,  and  Co.  remained 
over  the  door  of  the  defendant's  shop  in  the  Poultry,  where  they  had  previously 
carried  on  business  as  hatters,  till  April,  when  Colman's  name  was  substituted 
for  Archer's.     Lord  Ellenborough  Ch.  J:  was  of  opinion  that  it  was  necessary 
that  the  defendants  should  bring  home  some   notice  to   the  plaintiffs.      Archer 
had  imprudently  suffered  notice  to  be  given  of  the   continuance  of  the  partner- 
ship, by  permitting  his  name  to  remain  over  the  door  till  April.     Notice  in  the 
Gazette  was  not  to  be  considered   as   notice  of  the  dissolution  of  partnership  to 
all  the  world ;  it  was  a  medium  of  knowledge,  but  not   equivalent  to  actual  no- 
tice.    The  plaintiffs  accordingly  obtained  a  verdict. 

If  a  creditor  of  a  firm  holds  a  bill  of  exchange  accepted  by  the  firm  at  the 
time  of  their  dissolution  ;  and  afterwards  renews  the  bill  by  taking  the  separate 
notes  of  one  of  the  late  partners,  but  keeps  the  original  bill,  and  expressly  re- 
serves to  himself  the  right  of  resorting  to  all  the  members  of  the  old  firm,  they 
are  liable  even  though  the  holder  renews  the  bill  several  times.  (A) 

4.  OF  THE  PAYMENT  OF  DEBTS  AFTER  A  DISSOLUTION  OF  PARTNER- 
SHIP :  AND  OF  THE  APPLICATION  OF  SUCH  PAYMENTS. 

1.  Of  Payment  of  Debts  after  a    Dissolution    of    Partnership.] — 
Where  a  regular  notice  of  dissolution  of  partnership  is  given,  and  that  all  debts 

(g)  2  Stark.  Rep.  290.  (k)  Bedford  v.  Dtakin,  2  Barn.  &  Aid.  210. 

*507 


Chap.  1]  Of  the  Liability  of  Partners-  507 

due  to  the  firm  are  to  be  paid  to  those  who  remain  in  the  business,  specifying 
their  names,  a  payment  afterwards  to  the  outgoing  partner  is  invalid,  and  a  re- 
ceipt given  by  him  exclusively  is  void.  (163;  Thus,  in  the  case  of  Henderson 
and  Smith  v.  Wdd,(i)  which  was  an  action  for  goods  sold  and  delivered.  The 
plaintiffs  had  been  in  partnership  as  warehousemen,  and  sold  the  goods  in  ques- 
tion to  the  defendant,  on  the  6th  of  April,  1809,  and  the  1st  of  February,  1810. 
On  the  25th  of  October,  1810,  they  dissolved  their  partnership,  and  on  the  27th 
of  the  same  month  published  an  advertisement  in  the  London  Gazette,  giving 
notice  of  the  dissolution,  and  intimating  that  all  debts  due  to  the  partnership 
should  be  paid  to  Henderson  only.  On  the  part  of  the  defendant  two  receipts 
signed  by  the  plaintiff,  Smith,  were  put  in  and  proved,  one  bearing  date  the  21st 
of  March,  1810,  for  the  amount  of  the  first  parcel  of  goods  ;  and  the  other 
bearing  date  the  10th  July,  1810,  for  the  amount  of  the  last  parcel.  For  the 
plaintiffs  it  was  stated,  that  no  money  had  passed  when  these  receipts  were 
granted,  that  the  defendant,  *being  a  tailor,  had  done  business  on  the  separate 
account  of  Smith,  which  was  attempted  to  be  set  off  against  the  goods  sold  by 
the  partnership ;  and  moreover,  that  the  receipts,  although  dated  in  March  and 
July  1810,  had  not,  in  fact,  been  given  till  after  the  partnership  was  dissolved, 
and  the  advertisement  had  appeared  in  the  Gazette.  But  at  whatever  time  the 
receipts  had  been  given,  as  no  joint  consideration  passed  to  the  plaintiffs,  it  was 
contended  that  they  were  no  bar  to  the  action.  On  behalf  of  the  defendant  it 
was  allowed,  that  the  receipts  had  been  given  upon  a  set-off  of  Smith's  sepa- 
rate debt  against  the  debt  jointly  due  to  the  partnership.  He  denied  that,  in 
point  of  fact,  they  had  been  given  at  a  time  subsequent  to  their  respective 
dates  ;  but  whensoever  given,  he  maintained  the  plaintiffs  were  estopped  by 
them.  Here  was  an  acknowledgment  of  payment  under  the  hand  of  one  of  the 
plaintiffs  on  the  record,  who  could  not  pretend  that  he  had  signed  it  ignorantly, 
or  that  any  fraud  or  deceit  had  been  practised  upon  him.  Lord  Ellenborough 
Ch.  J.  was  of  opinion,  "  That  if  the  receipts  had  been  given  bona  fide  at  the 
times  they  bore  date,  they  would  have  been  a  bar  to  the  action,  though  the  de- 
fendant did  not  pay  the  price  of  the  goods  for  the  benefit  of  both  the  plaintiffs  ; 
but  that  if  they  were  in  reality  not  given  till  after  the  dissolution  of  partnership, 
and  the  advertisement  in  the  Gazette,  they  were  to  be  considered  fraudulent 
and  void."  The  evidence,  which  was  doubtful,  being  closed,  his  lordship  left 
it  to  the  jury  to  say  when  the  receipts  had  been  given.  The  jury  thought  that 
they  had  been  fabricated  after  the  dissolution  and  advertisement ;  and  therefore 
by  his  lordship's  direction  found  a  verdict  for  the  plaintiffs,  which,  upon  a  mo- 
tion for  a  new  trial  in  the  ensuing  term,  was  approved  of,  and  confirmed  by  the 
Court  of  King's  Bench. 

But  if  after  a  mere  notice  of  the  dissolution  of  a  partnership,  and  that  the  re- 


(i)  3  Campb.  561. 

(163)   Gramv.  Cadwell,  5  Cowen,  489. 
62  *508 


508  Of  Partnership  Contracts,  and        [Part  III. 

maining  partners  are  entitled  to  the  profit  and  loss,  without  an  express  notice 
not  to  pay  the  outgoing  partner,  who  had  relinquished  all  interest  in  the  con- 
cern, a  payment  is  made  bona  fide  to  the  outgoing  partner,  it  is  valid,  and  pro- 
tected both  at  law  and  in  equity.  (A:)  But  if  a  remaining  partner  have  the  ex- 
clusive right  in  equity  to  all  the  debts,  and  a  creditor  have  notice  of  that  exclu- 
sive right,  a  payment  to  the  outgoing  partner  cannot  affect  the  right  of  the  re- 
maining partner.  (/) 

If  upon  a  dissolution  of  partnership,  the  partners  appoint  an  agent  to  collect 
their  debts  ;  yet  it  has  been  held,  that  either  partner  may  afterwards  counter- 
mand the  authority,  and  receive  the  outstanding  debts  ;  and  that  a  payment  to 
either  is  valid,  even  though  the  debtor  has  promised  to  pay  his  debt  to  the 
agent,  (m)  (164) 

If  two  partners  dissolve  partnership,  and  one  of  them  agrees  to  take  *upon 
himself  to  discharge  a  joint  debt  due  to  A.,  who  also  verbally  consents  and 
agrees  to  that  arrangement,  this  is  not  binding  at  law  upon  A.  and  does  not 
discharge  that  partner,  but  both  are  jointly  liable  to  A.  for  the  partnership  debt ; 
there  being  no  consideration  for  the  agreement,  (n) 

2.  Of  the  Application  of  Payments  after  a  Dissolution  of  Partner- 
ship.]— The  general  rule  of  law  on  this  subject  is,  that  the  party  who  pays 
money  has  a  right  to  apply  that  payment  as  he  thinks  fit.  If  there  are  several 
debts  due  from  him,  he  has  a  right  to  say  to  which  of  those  debts  the  payment 
shall  be  applied.  If  he  does  not  make  a  specific  application  at  the  time  of 
payment,  then  the  right  of  application  generally  devolves  on  the  party  who  re- 
ceives the  money.  But  there  is  a  third  lule,  viz.  that  where  one  of  several 
partners  dies,  and  the  partnership  is  in  debt,  and  the  suiviving  partners  continue 
their  dealings  with  a  particula  r  creditor,  and  the  latter  joins  the  transactions  of 
the  old  and  the  new  firm  in  one  entire  account,  then  the  payments  made  from 
time  to  time  by  the  surviving  partners  must  be  applied  to  the  old  debt.  In 
that  case  it  is  to  be  presumed  that  all  the  parties  have  consented  that  it  should 
be  considered  as  one  entire  account,  and  that  the  death  of  one  of  the  partners 
has  produced  no  alteration  whatever. (o)  And  in  conformity  to  this  rule,  in  the 
recent  case  of  Si7nsonv.  Tngha?n,(p)  where  a  bond  was  given  by  country  bank- 
ers to  the  several  persons  constituting  the  firm  of  a  London  banking-house, 
conditioned  for  remitting  money  to  provide  for  bills,  and  for  the  re-payment  of 
such  sums  as  the  London  bankers  might  advance  on  account  of  persons  consti- 
tuting the  firm  of  the  country  banking-house,  or  any  of  them,  associated  or  not 
with  other  persons.  One  of  the  partners  in  the  country  bank  died,  a  consider- 
able balance  being  then  due  to  the  London  bankers.  It  was  the  course  of  bu- 
siness between  the  two  houses,  for  the  London  bankers  to  send  in  to  the  country 
. J 

(/:)  Duff  v.India  Company,  15  Ves.  200.  (o)  PctBayley,J.  in  Simpson    v.   Ingham 

(0  Ibid.  2  Barn.  _,  Cres.  72. 
(m)   Bristow  v.  Taylor,  2  Stark.  50.  (/>)  Ibid.  65. 

(n)  Lodge  v.  Dicas,  3  Earn.  &  Aid.  611. 

(164)  See  Rootes  v.  Wellford  k  Co.  4  Munf.  215. 
*509 


Chap.  1]        •  Of  the  Liability  of  Partners.  509 

bankers  to  send  monthly  accounts  of  receipts  and  payments.  In  the  month 
following  the  death  of  the  deceased  partner,  the  London  bankers  received  sums 
in  payment  more  than  sufficient  to  discharge  the  balance  then  due  ;  but  during 
the  same  time  they  advanced  money  on  account  of  the  country-bankers  to  an 
equal  amount.  In  the  first  instance  the  London  bankers  entered  in  their  books 
all  receipts  and  payments  made  after  the  death  of  the  deceased  partner  to  the 
account  of  the  old  firm,  but  they  did  not  transmit  any  account  to  the  country 
bankers  until  two  months  after  the  death  of  the  deceased  partner,  and  then 
they  transmitted  two  distinct  accounts  ;  one  the  account  of  the  old  firm,  made 
up  to  the  day  of  the  death  of  the  partner  ;  and  another,  a  new  account,  con- 
taining all  payments  and  receipts  subsequent  *to  that  time  :  it  was  determined, 
that  the  entries  in  the  books  of  the  London  bankers  did  not  amount  to  a  com- 
plete appropriation  by  them  of  the  several  payments  to  the  old  account;  such 
appropriation  not  being  complete  until  it  was  communicated  to  the  party  to  be 
affected  by  it ;  and  therefore  that  the  London  bankers,  notwithstanding  those 
entries,  were  entitled  to  apply  the  payments  received  subsequently  to  the  death 
of  the  deceased  partner  to  the  debt  of  the  new  firm. 

The  leading   authority  on  this  subject,  is  the  judgment  pronounced  by  Sir 
William  Grant,  whilst  Master  of  the  Rolls,  in  Clayton's  case,  (q)  upon  an  ex- 
ception to  the  Master's  report  in  a  cause  of  Devaynes  v.  Noble, (r)  where  it  had 
been  referred  to  the  Master  to  take  an  account  of  what  was  due  at  the  death  of 
William    Devaynes,  deceased,  from    the  partnership  of  the  said  William  De- 
vaynes, John  Dawes,  William  Noble,  R.  H.  Croft,  and  Richard    Berwick,  to  the 
plaintiffs,  and  all  such  other  persons  as  were  creditors  of  the  partnership,    at 
the  time  of  the  death  of  Devaynes,  and   also  of  what  was  due,  at  the  time  of 
making   the  decree,  from   the   partnership  to  such   creditors,   and  to   enquire 
whether  such  creditors,  or  an}-,  and  which  of  them,  continued  to  deal  with  the 
surviving  partners  after  the  death  of  Devaynes,  and   what  sums  of  money  were 
paid  by  the  surviving  partners  to  such  creditors,  respectively,  from  the  death  of 
Devaynes  to  the  bankruptcy,  and  what  had  since  been  received  by  them  respec- 
tively.    And  also  whether  such  creditors,  or  any,  and  which  of  them,  had,  by 
such  subsequent  dealings,  released  the  estate  of  Devaynes  from  the  payment  of 
their  respective  debts,  or  what  (if  any  thing)  remained  due   in  respect  thereof. 

One  class  of  creditors  was  represented  by  Mr.  Clayton,  and  consisted  of 
those  who  after  the  death  of  Devaynes,  continued  to  deal  with  the  surviving 
partners  both  by  drawing  out  and  paying  in  money ;  payments  being  made  by 
the  surviving  partners  before  they  received  any  money  of  the  creditors,  and  the 
balance  varying  from  time  to  time,  sometimes  increased  and  sometimes  dimin- 
ished, but  upon  the  whole  considerably  increased  by  the  subsequent  transac- 
tions. At  the  death  of  Devaynes,  Clayton's  cash  balance  in  the  hands  of  the 
partnership  amounted  to  1713/.,  and  a  fraction.  After  the  dealh  of  Devaynes, 
and  before  Clayton  paid  in  any  further  sums  to  his  account  with  the  bankers, 

(q)  1  Merivale's  Rep.  585.  (V)  Ibid  530. 

*510 


510  Of  Partnership  Contracts,  and       [Part  III. 

he  drew  out  of  the  house  sums  to  the  amount  of  1260/.,  thereby  reducing  his 
cash  balance  to  453/.  and  a  fraction.  From  this  time  to  the  bankruptcy,  Clay- 
ton both  paid  in  and  drew  out  considerable  sums,  but  his  payments  were  so 
much  larger  than  his  receipts,  that,  at  the  time  of  the  bankruptcy,  his  cash 
balance  in  the  hands  of  the  surviving  partners  exceeded  1713/.,  the  amount  of 
the  cash  balance  at  Devaynes's  dealh.  By  the  amount  of  the  dividends  receiv- 
ed since  the  bankruptcy,  (those  dividends  being  apportioned  to  the  whole  debt 
proved  under  the  commission,)  the  *balance  of  1713/.  would  be  reduced  to 
1171/.  and  a  fraction;  and  it  was  this  last  sum  which  Clayton  claimed 
against  Devaynes's  estate,  and  as  to  which  the  master  had  reported  that  Clay- 
ton had,  by  his  subsequent  dealings  with  the  surviving  partners,  released  the 
said  estate.  An  exception  was  taken  to  the  Report ;  and  after  the  matter  had 
been  argued  at  great  length,  and  with  great  ability  at  the  bar,  and  all  the  cases 
on  the  subject  brought  into  review,  the  following  judgment  was  pronounced  by 
the  Master  of  the  Rolls  : — 

"  Though  the  report  states  the  Master's  opinion  to  be  that  Mr.  Clayton  hast, 
by  his  dealings  and  transactions  with  the  surviving  partners,  subsequent  to  the 
death  of  Mr.  Devaynes,  released  his  estate  from  the  payment  of  the  cash  balance 
of  1713/.,  yet  that  the  ground  of  that  opinion  is,  not  that  the  acts  done  amount 
constructively  to  an  exoneration  of  Mr.  Devaynes's  estate,  but  that  the  balance 
due  at  his  death  has  been  actually  paid  off,  and,  consequently,  that  the  claim 
now  made  is  an  attempt  to  revive  a  debt  that  has  once  been  completely  extin- 
guished. This  case  has  given  rise  to  much  discussion,  as  to  the  rules  by 
which  the  application  of  indefinite  payments  is  to  be  governed.  Those  rules 
we  probably  borrowed,  in  the  first  instance,  from  the  civil  law.  The  leading 
rule,  with  regard  to  the  option  given,  in  the  first  place  to  the  debtor,  and  to  the 
creditor  in  the  second,  we  have  taken  literally  from  thence.  But  according  to 
that  law,  the  election  was  to  be  made  at  the  time  of  payment,  as  well  in  the 
case  of  the  creditor,  as  in  that  of  the  debtor.  If  neither  applied  the  payment, 
the  law  made  the  appropriation  according  to  certain  rules  of  presumption, 
depending  on  the  nature  of  the  debts,  or  the  priority  in  which  they  were  in- 
curred. And,  as  it  was  the  actual  intention  of  the  debtor,  that  would,  in  the 
first  instance,  have  governed  ;  so  it  was  his  presumable  intention  that  was 
first  resorted  to  as  the  rule  by  which  the  application  was  to  be  determined. 
But  it  has  been  contended  that,  in  this  respect,  our  courts  have  entirely 
reversed  the  principle  of  decision,  and  that  in  the  absence  of  express  ap- 
propriation by  either  party,  it  is  the  presumed  intention  of  the  creditor  that 
is  to  govern,  or  at  least,  that  the  creditor  may,  at  any  time,  elect  how  the 
payments  made  to  him  shall  retrospectively  receive  their  application.  There 
is  certainly  a  great  deal  of  authority  for  this  doctrine.  With  some  shades  of 
distinction,  it  is  sanctioned  by  the  case  of  Goddard  v.  Cox,(s)  by  Wilkinson 
V.  Sterne,  (t)  by  the  ruling  of  the  Lord  Chief  Baron  in  Nemnarch  v.  Clay,(v) 


(s)  2  Stra.  1191.  (u)   14  Eaat  Re[>.  239. 

\t)  9  Mod.  427. 
*511 


Chap.  1.]  Of  the  Liability  of  Partners.  511 

and  by  Peters  v.  Andcrson,{v)  in  the  Common  Pleas.  From  these  cases,  1 
should  collect,  that  a  proposition  which  in  one  sense  of  it  is  indisputably  true  ; 
namely,  that  if  the  debtor  does  not  apply  the  payment,  the  creditor  may  make 
the  application  to  what  debt  he  pleases,  has  been  extended  much  beyond 
its  original  *meaning,  so  as  in  general  to  authorise  the  creditor  to  make 
his  election  when  he  thinks  fit,  instead  of  confining  it  to  the  period  of  payment, 
and  allowing  the  rules  of  law  to  operate  where  no  express  declaration  is  then 
made.  There  are,  however,  other  cases  which  are  irreconcileable  with  this 
indefinite  right  of  election  in  the  creditor,  and  which  seem  on  the  contrary,  to 
imply,  a  recognition  of  the  civil  law  principle  of  decision.  Such  are,  in  partic- 
ular, the  cases  of  Meggott  v.  Mills,(w)  and  Dome  v.  Holdsworth.(x)  The 
creditor  in  each  of  these  cases,  elected,  ex  post  facto,  to  apply  the  payment  to 
the  last  debt.  It  was  in  each  case  held  incompetent  for  him  so  to  do.  There 
are  but  two  grounds  on  which  these  decisions  could  proceed  :  either  that  the 
application  was  to  be  made  to  the  oldest  debt,  or  that  it  was  to  be  made  to  the 
debt  which  it  was  most  for  the  interest  of  the  debtor  to  discharge.  Either 
way  the  decision  would  agree  with  the  rule  of  the  civil  law,  which  is,  that  if  the 
debts  are  equal,  the  payment  is  to  be  applied  to  the  first  in  point  of  time.  If 
one  be  more  burthensome,  or  more  penal  than  another,  it  is  to  it  that  the 
payment  shall  be  first  imputed.  A  debt  on  which  a  man  could  be  made  a 
bankrupt,  would  undoubtedly  fall  within  this  rule.  The  Lord  Chief  Justice  of 
the  Common  Pleas,  explains  the  ground  and  reason  of  the  case  of  Dowe  v.  Holds- 
worth,  in  precise  conformity  to  the  principle  of  the  civil  law.  The  cases  then 
set  up  two  conflicting  rules  ;  the  presumed  intention  of  the  debtor,  which  in 
some  instances,  at  least,  is  to  govern  ;  and  the  ex  post  facto  election  of  the 
creditor,  which  in  other  instances  is  to  prevail.  I  should,  therefore,  feel  my- 
self a  good  deal  embarrassed,  if  the  general  question  of  the  creditor's  right  to 
make  the  application  of  indefinite  payments  were  now  necessarily  to  be  deter- 
mined. But  I  think  the  present  case  is  distinguishable  from  any  of  those  in 
whbh  that  point  has  been  decided  in  the  creditor's  favour.  They  were  all 
cases  of  distinct  insulated  debts,  between  which  a  plain  line  of  separation  could 
be  drawn.  But  this  is  the  case  of  a  banking  account,  where  all  the  sums 
paid  in,  form  one  blended  fund,  the  parts  of  which  have  no  longer  any  distinct 
existence.  Neither  banker  nor  customer  ever  thinks  of  saying  this  draft  is 
to  be  placed  to  the  account  of  the  5001.  paid  in  on  Monday,  and  this  other 
to  the  account  of  the  500/.  paid  in  on  Tuesday.  There  is  a  fund  of  1000/.  to 
draw  upon,  and  that  is  enough.  In  such  a  case  there  is  no  room  for  any  other 
appropriation  than  that  which  arises  from  the  order  in  which  the  receipts  and 
payments  take  place,  and  are  carried  into  the  account.  Presumably,  it  is  the 
sum  first  paid  in,  that  is  first  drawn  out.  It  is  the  first  item  on  the  debit  side  of 
the  account  that  is  discharged  or  reduced  by  the  first  item   on   the   credit   side. 

(b)  5  Taunt.  596.  (x)  Peale  Ni.  Pri.  G4. 

(to)  Ld.  Raym.  287. 

*512 


513  Of  Partnership  Contracts,  and  [Part  111. 

The  appropriaton  is  made  by  the  very  act  of  setting  the  two  items  against  each 
other.     Upon  that  principle,    all  accounts   *current  are    settled,  and  particu- 
larly cash  accounts.     When  there  has  been  a  continuation  of  dealings,  in  what 
way   can  it  be  ascertained  whether  the  specific  balance  due   on  a  given  day 
has,   or  has  not,   been  discharged,  but  by  examining    whether  payments  to 
the   amount  of  that  balance   appear  by  the  account  to  have  been  made  ?  You 
are  not  to  take  the  account  backwards,  and  strike   the  balance  at  the  head,  in- 
stead of  the  foot  of  it.     If  appropriation  be  required,  here  is  appropriation  in  the 
only  way  that  the   nature  of  the  thing  admits.     Here  are  payments,  so  placed 
in  opposition  to  debts,  that,  on  the  ordinary  principles   on  which  accounts  are 
settled,  this   debt  is  extinguished.     If  the  usual  course  of  dealing  was,  for  any 
reason,   to  be  inverted,  it  was  surely  incumbent  on  the  creditor  to  signify  that 
such  was  his  intention.     He  should  either  have  said  to  the  bankers, — "  Leave 
this  balance  altogether  out  of  the  running  account  between  us,"  or,  "Always 
enter  your    payments  as  made  on  the  credit  of  your  latest  receipts,  so  as 
that  the  oldest  balance  may  be  the  last  paid."     Instead  of  this,  he  receives  the 
account  drawn  out   as  one   unbroken  running  account.     He  makes  no  objec- 
tion to  it,  and  the   report  states  that   the  silence  of  the  customer   after  the  re- 
ceipt of  his  banking  account  is   regarded  as  an  admission  of  its   being  correct. 
Both    debtor   and  creditor  must,   therefore,  be  considered  as  having  concurred 
in  the  appropriation.     But  there  is  this  peculiarity  in  the  case,   that  it   not  on- 
ly by  inference  from  the  nature  of  the  dealings  and  the  mode  of  keeping  the 
account,  that  we  are  entitled  to  ascribe  the  drafts  or  payments  to  this  balance, 
but  there  is  distinct   and  positive  evidence  that  Mr.    Clayton   considered  and 
treated  the    balance  as  a  fund  out  of   which,    notwithstanding     Devaynes's 
death,  his  drafts  were  to  continue  to  be  paid.     For  he  drew,  and  that  to  a  con- 
siderable  extent,  when  there   was  no  fund,  except  this  balance,  out  of  which 
his  drafts  could  be    answered.     What  was  there,   in  the   next  draft  he   drew, 
which  could  indicate  that  it  was  not  to  be  paid  out  of  the  residue  of  the  same 
fund,  but  was   to  be  considered  as   drawn   exclusively  on  the  credit  of  money 
more  recently  paid  in  1  No  such  distinction  was  made  ;  nor  was  there  any  thing 
from  which  it  could    be  inferred.     I  should,  therefore,  say,   that  on  Mr.  Clay- 
ton's express  authority  the  fund  was  applied  in  payment  of  his  drafts  in  the  or- 
der in  which   they  were  presented.     But  even  independently  of  this  circum- 
stance, I  am  of  opinion,  on  the  grounds  I  have  before   stated,  that  the  master 
has  rightly  found  that  the  payments  were  to  be  imputed  to  the  balance   due   at 
Mr.  Dcvaynes's  death,  and  that  such  balance  has,  by  those  payments,  been  fully 
discharged.     The  exception  must  therefore  be  over-ruled." 

So,  in  the  case  of  Bodenham  ty-  Philips  v.  Purchas  the  elder, (y)  where,  af- 
ter a  bond  had  been  given  to  the  several  persons  constituting  the  firm  *of  a  bank- 
ing-house, conditioned  for  the  repayment  of  the  balance  of  an  account,  and  of 
such  further  sums  as  the  bankers  might  advance  to  the  obligor ;  one  of  the  part- 


(;/)  2  Barn.  &  Aid.  33. 
'513  *5U 


Chap.  1.]         Of  the  Liability  of  Partners.  514 

ners  died,  and  a  new  partner  was  taken  into  the  firm;  and  at  that  time  a 
considerable  balance  was  due  from  the  obligor  to  the  firm;  but  advances 
were  afterwards  made  by  the  bankers,  and  payments  made  to  them  on  ac- 
count by  the  obligor  :  the  latter  was  credited  by  the  new  firm  with  the 
several  payments,  and  charged  with  the  original  debt  and  subsequent  ad- 
vances, as  constituting  items  in  one  entire  account ;  and  the  balance  due 
at  the  time  of  the  partner's  death  was  considerably  reduced,  and  that  re- 
duced balance,  by  order  of  the  obligor,  was  transferred  by  the  bankers  to  the 
account  of  another  customer,  who,  with  his  assent,  was  charged  with  the 
then  debt  of  the  obligor.  The  person  so  charged  having  become  insolvent, 
the  surviving  partners  of  the  original  firm  brought  their  action  upon  the 
bond.  But  the  court  of  King's  Bench  determined,  that  as  they  had  not  orig- 
inally treated  it  as  a  distinct  account,  but  had  blended  it  in  the  general 
account  with  other  transactions,  they  were  not  at  liberty  so  to  treat  it  at 
a  subsequent  period  ;  and  that  having  received  in  different  payments  a  sum 
more  than  sufficient  to  discharge  the  debt  due  upon  the  bond  at  the  time 
of  the  death  of  the  deceased  partner,  that  the  bond  was  to  be  considered  as 
paid. 

And  in  Newmarch  v.  Clay,(z)  where  the  plaintiffs  had  dealt  for  a  long  time 
with  two  partners,  not  knowing  that  they  had  a  third  partner  during  part  of 
the  time,  and  furnished  them  with  goods,  and  received  payments  on  account 
generally,  and  previous  to  the  time  when  the  secret  tri-partnership  was 
dissolved,  goods  had  been  furnished,  and  to  cover  which,  bills  had  been  paid 
to  the  plaintiffs  by  the  two  ostensible  partners,  which  were  dishonoured  after 
the  secret  dissolution  of  the  tri-partnership,  and  then  other  goods  were 
furnished  as  before,  yet  as  the  dishonoured  bills  were  afterwards  delivered  up 
by  the  plaintiffs  upon  the  receipt  of  the  subsequent  good  bills,  whieh  latter 
were  more  than  sufficient  to  cover  the  debts  of  the  tri-partnership,  though 
not  to  cover,  in  addition,  the  goods  furnished  after  the  dissolution  of  it ;  It  was 
held,  that  such  delivering  up  of  the  old  dishonoured  bills,  upon  receipt  of  the  new 
good  bills,  was  evidence  of  a  particular  appropriation  of  such  new  bills  in  pay- 
ment and  discharge  of  the  old  debt :  of  which  the  secret  third  partner  might 
avail  himself  in  an  action  on  the  case  for  goods  sold  and  delivered,  brought 
against  him  jointly  with  the  other  two  partners. 

In  the  case  of  Bodcnham  fy  Purchas,(a)  Baylcy  Just,  observed,  "  that  the 
decisions  in  courts  of  law  do  not  break  in  upon  the  distinction  *taken  in  Clay- 
tori's  case,  and  that  the  principle  established  by  those  decisions  is,  that  where 
there  are  distinct  accounts,  and  a  general  payment,  and  no  appropriation  made 
at  the  time  of  such  payment  by  the  debtor,  the  creditor  may  apply  such  pay- 
ment to  which  account  he  pleases  ;  but  that  where  the  accounts  are  treated  as 
one  entire  account  by  all  parties,  that  rule  does  not  apply."  Abbott  Just,  said, 
"  that  Clayton's  case,  was  decided  upon  great  consideration,  and  was  an  au- 


U)   14  East  Rep.  239.  C«)  Ante,  513. 

*515 


515  Oj  Partnership  Contracts,  and        [Part  III. 

thority  of  great  weight."     And  Holroyd,  Just,  added,  "  that  it  was  decided  on 
the  soundest  principles,  and  governed  this  case. 

5.  HOW  PARTNERS  MUST  SUE  OR  BE  SUED  UPON  PARTNERSHIP  CON- 
TRACTS, AND  AFTER  THE  DISSOLUTION  OF  THE  PARTNERSHIP  BY 
DEATH  OR  BANKRUPTCY. 

How  Partners  must  Sue  upon  Partnership  Contracts.] — In  actions 
by  a  partnership  firm  for  recovery  of  a  joint  debt,  or  for  damages  for  non-perform- 
ance of  any  other  contract  made  during  the  partnership,  all  the  partners  in  the 
firm  at  the  time  of  contracting  the  debt,  or  making  the  contract,  whether  they 
continue  in  partnership  or  not,  must  sue  and  be  sued  (except  in  the  case  of 
bankruptcy  as  will  be  afterwards  noticed)  the  contract  or  promise  being  joint. 
And  therefore,  if  one  partner  only  sues  upon  a  joint  contract,  the  action  can- 
not be  maintained ;  and  the  defendant  may  take  advantage  of  this  omission  at 
the  trial,  and  nonsuit  the  plaintiff.  (165)  But  in  an  action  for  a  tort  or  wrong, 
this  matter  can  only  be  taken  advantage  of  by  plea  in  abatement,  (b)  An 
action  upon  a  contract,  however,  must  be  brought  at  the  suit  of  such  partners 
only  as  were  in  partnership  at  the  time  of  making  the  contract,  (c)  In  the  case 
of  Garrett  v.  Taylor,(d)  where  three  persons  had  employed  the  defendant  to 
sell  some  timber  for  them,  in  which  they  were  jointly  concerned  ;  he  had  paid 
two  of  them  their  exact  proportions,  and  they  had  given  him  a  receipt  in  full 
of  all  demands  ;  the  third  now  brought  his  action  for  the  remainder,  being 
his  share  ;  and  it  was  objected,  that  as  this  was  a  joint  employment  by  three, 
one  alone  could  not  bring  his  action  ;  but  it  was  ruled  by  Lord  Mansfield,  that 
where  there  had  been  a  severance  as  above  stated,  that  one  alone  might  sue  for 
his  proportionate  share. 

A  secret  or  dormant  partner  may  be  made  plaintiff  in  a  suit  ;  though  not 
necessarily  so  :  (e)  and  he  need  not  be  joined,  if  his  apparent  and  ostensible 
partner  represented  himself  as  the  sole  contractor.  (/)( 166)  So,  *nominal  part- 
ners need  not  be  joined,  if  they  really  had  no  interest  in  the  concern,  unless 
the  defendant's  rights  would  be  affected,  (g)  Infants  must  join  in  actions 
brought  by  their  partners,  though  they  cannot  be  jointly  sued  with  others,  (h) 

2.  How  Partners  should  be  sued  upon  Partnership  Contracts.] — 
In  actions  against  partners,  all  of  them  should  regularly  be  sued  ;  though  if  one 
be  sued  alone,  he  can  only    take  advantage  of  this  omission  by  plea  in  abate- 


(b)  Vide    2   Stra.  S20.    2    Term    Rep.  Leveck  v.  Shaftee,  2  Esp.  Rep.  468. 

282.  (/)    Skinner  v.  Stocks,  4  Barn.  &  Aid.  437. 

(c)  1  Esp.  Rep.  182.  1  Maule  &  Sel.  249. 

(d)  Sitting's  at  Guildhall,  Trin.  4  G.  3.  co-         («•)  3  Esp.  Rep.  238. 
ram  Lord  Mansfield,  Esp.  N.  P.  117.  (A)    14  East  Rep.  210. 

(e)  Lloyd  v.  Archbowle,  2  Taunt.  324,  325. 

(165)  See  Dob  v.  Halsey,  16  J.  R.  34.     Waggoner  v.  Gray's  Exrs.  2  Hen.  &  Munf.  603. 

(166)  It  has  been  decided,  that  a  dormant  partner  need  not  be  joined  in  assumpsit  for 
goods  sold,  founded  on  a  contract,  at  the  time  of  making  which,  his  interest  was  unknown 
to  the  defendant.  Clarkson  v.  Carter,  3  Cowen,  84. 

•516 


Chap.  1.]  Of  the   Liability  of  Partners.  516 

ment ;  for  if  he  were  allowed  to  give  it  in  evidence  upon  the  trial,  and  so  non- 
suit the  plaintiff',  it  would  be  a  great  hindrance  to  justice  ;  for  in  many  instances 
a  creditor  does  not  know  all  the  partners,  particularly  a  secret  one. (167) 
But  where  the  defendant  pleads  in  abatement,  he  must  set  forth  in  his  plea  the 
names  of  all  his  partners,  and  the  plaintiff  is  thereby  informed  against  whom 
he  ought  to  proceed. (i) 

And  any  agreement  amongst  each  other,  as  to  which  shall  be  liable,  will 
have  no  effect  upon  a  third  party :  there  may,  indeed,  be  some  cases  in  which 
a  change  of  credit  by  agreement  between  the  parties,  would  transfer  the  liabili- 
ty from  the  original  contracting  party  to  one  only  of  the  firm,  (k)  Secret  and 
dormant  partners,  or  mere  nominal  partners  need  not  be  made  defendants  in 
a  suit  at  law.  (/)  An  infant  partner  should  not  be  joined,  (/«)  but  a  bankrupt 
partner  at  the  time  of  entering  into  the  contract,  though  he  has  obtained  his 
certificate,  must  be  joined. (n)  If  several  partners,  however,  jointly  commit  a 
tort,  the  plaintiff  has  his  election  to  sue  all  or  any  of  the  members,  because  a 
tort  is,  in  its  nature,  the  separate  act  of  each  individual  ;(o)  but  if  the  ground 
of  complaint  is  merely  for  the  non-feazance  of  a  contract,  all  the  partners 
must  be  sued.(p) 

But  where  two  persons  jointly  carry  on  business  as  partners,  but  one  only 
appears,  and  is  known  in  the  concern,  and  is  permitted  to  represent  himself  to 
the  world  as  a  sole  trader,  that  one  shall  not  be  allowed  to  set  up  partnership 
as  a  defence  to  an  action  brought  against  him  only.(y) 

3.  How  Partners  are  to  Sue  and  be  Sued  upon  the  event  of  the 
Death  of  any  of  them.] — With  regard  to  surviving  partners,  it  is  a  rule, 
that  where  one  of  several  partners  dies,  an  action  upon  a  partnership  contract 
must  be  brought  in  the  name  of  the  survivors  only  ;(16S)  for  the  executor  and 
the  survivors  cannot  join,  because  the  *remedy  survives,  and  in  an  action 
by  or  against  a  surviving  partner,  the  plaintiff  may  declare  not  only  for  a  debt 
contracted  in  the  lifetime  of  the  deceased  partner,  but  also  for  a  debt  due  to  or 

(i)  2  Bl.  Rep.  695.  947.     5  Bur.  2612.  See         (m)  3  Esp.  Rep.  76.     4  Taunt.  468. 
also  1  Saund.  291.  b.  n.  4.  (,i)  2  Maule  &  Sel.  23.  &  444.     6  Taunt. 

(k)   1  Campb.  Rep.  99.  n.  173. 

(I)  3  Price  Rep.  533.     4  Maule  &  Sel.  475.         (o)  5  Bur.  2813.     5  Term  Rep.  649. 
7  Term  Rep.  361.n.  c.     But  see  1  Mar.  246.         (p)   12  East  Rep.  454.     2  New  Rep.  454. 
contra.  (7)  7  Term  Rep.  361. 


(167)  And  for  the  same  reason,  where  action  of  assumpsit  was  brought  against  S.  &  S. 
as  partners,  under  the  name  of  S.  &  S.  and  Co.,  makers  of  a  promissory  note,  and  judgment 
was  recovered  against  them,  which  was  unsatisfied  ;  and,  afterwards,  it  was  discovered,  that 
P.  &  W.  were  also  members  of  the  partnership,  at  the  time  the  note  was  given  ;  whereupon, 
the  plaintiff  brought  an  action  against  the  four,  as  makers  of  the  note  ;  held,  that  the  judg- 
ment against  the  two  defendants  was  a  bar  to  the  subsequent  suit  against  the  four  defen- 
dants, both  suits  beinsfforthe  same  cause  of  action.  Robertson  v.  Smith,  18  J.  R.  459.  See 
Penny  v.  Martin,  4  J.  Ch.  R.  566.  See  also  Scottv.  Dunlop,  2  Munf.  3-19.  Shields  v.  Oney,  5 
Munf.  550.     Brown  v.  Belches,  1  Wash.  9.     Banietv.  Watson,  Id.  372. 

(168)  See  Murray  v.  Mumford,  6  Cowen,  441.  M'Carty  v.  Nixon,  2  Dall.  65,  66.  note. 
Wallace  v.  Fitzsimmons,  1  Dall.  248.  Tom  v.  Goodrich,  2  J.  R.  213.  Goelet  v.  M'Kinstry.  1 
J.  C.  403.  " 

03  »517 


517  Of  Partnership  Contracts,  and  [Part  III. 

from  the  survivor  in  his  own  right,  (r)  The  executor  must  resort  to  a  court  of 
equity  to  obtain  from  the  survivor  the  testator's  share  of  the  sum  recovered  :  and 
where  a  creditor  or  other  person  seeks  to  recover  from  a  surviving  partner  a  debt, 
or  damages  for  non-performance  of  a  contract  made  by  him  and  his  deceased 
partner,  the  surviving  partner  alone  must  be  sued,  for  he  cannot  be  sued  joint- 
ly with  the  executor,  because  one  is  to  be  charged  de  bonis  testaloris,  and  the 
other  de  bonis propriis.(s)  And  when  a  surviving  partner  dies,  his  executor  or 
administrator  is  to  be  made  defendant,  (t)  So,  if  the  contract  be  several,  or  joint 
and  several,  the  executor  of  the  deceased  may  be  sued  at  law  in  a  separate  ac- 
tion, (u) 

4.  How  Partners  must  Sue  and  be  Sued  in  the  event  of  Bankruptcy 
of  any  of  them.] — If  one  of  several  partners  become  bankrupt,  the  solvent 
partners  must  sue  jointly  with  the  assignees  for  a  joint  debt  or  contract  which 
accrued  prior  to  the  bankruptcy,  (v)  So,  where  one  of  several  contracting  par- 
ties against  whom  there  is  a  cause  of  action  upon  a  joint  contract,  becomes 
bankrupt,  the  action  must  be  brought  jointly  against  the  solvent  partner  and  the 
bankrupt.  (w)  (169) 

The  assignees  of  A.  a  bankrupt,  and  also  of  B.  a  bankrupt,  under  separate 
commissions,  cannot  recover  in  the  same  action  ajoint  debt  due  from  the  defen- 
dant to  both  the  bankrupts,  and  also  separate  debts  due  to  each :  and  if,  in  such 
an  action,  the  jury  have  assessed  the  damages  severally  on  the  separate  counts, 
the  court  will  arrest  the  judgment  on  those  counts  which  demand  the  debts  due 
to  each  bankrupt  separately.(.r)  But  where  the  plaintiff  declared  as  assignees  of 
A.  and  B.,  and  also  as  assignees  of  C,  for  a  joint  demand  due  to  all  the  bank- 
rupts, such  declaration  was  held  good  on  motion  in  arrest  of  judgment  after  ver- 
dict, (y) 

6.  OF  THE  RIGHT  OF  SET-OFF  OF  MUTUAL  DEBTS. 

Joint  and  separate  debts  cannot  be  set  off  against  each  other ;  for  the  stat- 
ute (z)  only  authorizes  the  setting  off  of  mutual  debts  :  and  therefore,  as  well 
the  debt  sought  to  be  recovered  as  that  to  be  set  off,  must  be  due  in  the  same 
right:(170)  but   a   debt  on  a  joint  and  several  bond,  maybe  set  off  to  an   ac- 

(>•)  Vide  2  Terra  Rep.  476.  5  Term.  Rep.  (tc)  2    Maule     &  Sel.   23.  444.     1  Wils. 

493.     6  Terra  Rep.  582.  89. 

(s)  Carth.  171.  2  Lev.  228.  {x)  Hannock     and    others,    Assignees  v. 

(t)  3Brod.  &  Bing.  302.    9  Co.  89.  a.  Haywood,  3  Term.  Rep.  433. 

(u)  Burr  .   1194,  &c.  («/)   Streatfield  v.  Halliday,   lb.   779. 

(»)   10  East     Rep.    418.      12  Mod.   416.  (z)  2  Geo.  2.  c.  22.  s.  13. 
8  Term  Rep.  140. 

(169)  See  Lang  v.  Keppele,  1  Binn.  123. 

(170)  It  is  well  settled,  that  a  debt  due  from  an  individual  partner,  cannot  be  set  off 
against  a  partnership  demand,  and  vice  versa.  Scott  v.  Trent,  1  Wash.  77,  79.  Ritchie  v. 
Moore,  5  Munf.  388.  Jlrmisteud  v.  Butler's  Admr.  1  Hen.  &  Munf.  176.  See  Rose  v.  Mm- 
chie,  2  Call,  409.  This  last  case,  under  the  circumstances  and  custom  of  the  country,  was 
considered  to  be  an  exception  to  the  general  rule.  But  in  an  action  against  one  partner,  for 
a  debt  due  by  the  partnership,  a  receipt  by  the  plaintiff  to  the  defendant,  for  goods,  may 
be  set  off,  the  defendant  being  sued  alone.     Purriancev.  Sutherland,  Addis.  291,  292. 

*518 


Chap.  1.]  Of  the  Liability  of  Partners*  518 

tion  brought  by  one  of  the  obligors  only,  (a)  So,  a  debt  #upon  a  bond  purport- 
ing to  be  a  joint  and  several  bond,  but  executed  by  one  only  of  the  obligors, 
may  be  set  off  to  an  action  commenced  by  the  obligor  who  has  executed  it.  (c) 
So,  a  partnership  debt  due  to  a  defendant  as  surviving  partner,  may  be  set  off 
against  a  demand  on  him  in  his  own  right,  and  vice  versa.{d)   So,  if  a  firm  be 
carried  on  in  the  name  of  one  person  only,  a  separate  debt  from  that    person 
may  be  set  off  either  in  an  action  commenced  in  his  own  right  or  in  an  action 
commenced  by  the  firm.(e)   So,  if  a  person  give  a  note  to  his  bankers  for  a  debt 
due  to  them,  and  the  bankers  indorse  the  note  to    another   firm,    consisting  of 
some  of  the  partners  to  the  banking-house,  the   maker  of  the  note  may  set  off 
any  debt  due  to  him  from  his  bankers  to  an  action  commenced  against  him   on 
the  note  by  the  firm  who  hold  it.(/)   So,  if  it  is  agreed   between  a  separate 
tradesman  and  the  members  of  a  firm,  that  the  separate  debts  due  to  him  from 
each  member  of  the  firm  shall  be  set  off  against  the  joint  debt  due  to  him  from 
the  firm,  and  the  parties  continue  their  dealing  without  any  express  renewal  of 
their  agreement,  the  joint  and  separate  debts  may  be  set  ott.{g)  But  a  judgment 
recovered  by  a  separate  plaintiff  against  a  firm  of  two  members  cannot  be  set 
off  upon  his  application,  against  a  judgment  recovered  against  him  by  the  trus- 
tees under  an  insolvent  act  for  one  of  the  defendants,  (h) 

7.  OF  CONTRACTS  AND  PROMISES  BY  PARTNERS  LYTER  SE. 

Generally  speaking,  one  partner  has  no  remedy  at  law  against  his  copartner 
for  any  thing  relating  to  the  partnership  concern,  except  upon  an  express  con- 
tract or  promise  made  between  them  ;  the  only  remedy  being  in  a  court  of 
equity.  (171) 

But  money  paid  by  one  partner  to  another  before  the  bankruptcy  of  the  latter, 
for  the  purpose  of  being  paid  over  as  his  liquidated  share  of  a  debt  to  their  joint 
creditor,  if  it  be  not  so  applied,  is  proveable  as  a  debt  under  the  commission  of 
the  bankrupt  partner,  and  also  recoverable  against  the  solvent  partner ;  and  if 


(o)  Fletcher  v.  Dyche,  2  Term.   Rep.  32.  (e)  Slacey  v.  Decy,  2  Esp.  Rep.  469  n. 

(c)  Fletcher  v.   Dyche,  2  Term.   Rep.    32.  (/)    Putter  v.  Roe,  Peake,  197. 

See  also  2  Bos.  &  Pul.  333.  (g)    Kinnerley  v.  Hossack,  2  Taunt.    170. 

(d)  5  Term  Rep.  493.  6    Term  Rep.  5S2.  (&)  Doe  v.  Damton,  3  East  Rep.  149. 


(171)  See  Beach  v.  Hotchkiss,  2  Conn.  Rep.  425.  S.  C.  Id.  697.  Collins  v.  Phelps,  3  Day, 
506.  Casey  v.  Brush,  2  Caines,  293.  Murray  v.  Bogert,  14  J.  R.  318.  Ozeas  v.  Johnson, 
4  Dall.434.  S.  C.  1  Binn.  191.  Niven  v.  S picker  man,  12  J.  R.  401.  Halsted  v.  Schmebzel, 
17  J.  R.  80.  It  has  been  held,  that  where  partners  hold  land  together,  they  are  tenants  in 
common  ;  and  if,  on  a  conveyance  of  the  land  by  them,  one  partner  receive  the  purchase 
money,  the  other  may  maintain  assumpsit  against  him,  for  his  proportion  of  it.  Coles  v. 
Coles,  15  J.  R.  159.  And  where  one  of  three.partncrs  took,  an  assignment  of  all  the  partner- 
ship stock  and  credits,  and  agreed  to  pay  all  the  partnership  debts,  he  is  liable,  in  an  ac- 
tion at  common  law,  for  a  debt  due  from  the  copartnership  to  one  of  the  copartners.  Ho- 
bart  v.  Howard,  9  Mass.  Rep.  304.  So,  one  partner  may  maintain  assumpsit  against  his  co- 
partner, after  a  dissolution  of  the  partnership,  to  recover  back  money  paid  by  mistake  on 
the  adjustment  of  the  partnership  concerns.  Bond  v.  Hays,  12  Mass.  Rep.  34.  See  further, 
Gray  v.  Portland  Bank,  3  Mass.  Rep.  364. 

*518 


518  Of  Partnership  Contracts,  and        [Part  III. 

the  latter  be  not  called  upon  to  repay  the  debt  to  the  joint  creditor  till  after  the 
bankruptcy  of  the  other,  he  may  recover  from  the  bankrupt  partner  his  share 
of  such  debt  so  paid  after  the  bankruptcy  to  the  joint  creditor,  notwithstanding 
he  may  have  obtained  his  certificate.  (?) 

So,  where  A.  engages  as  a  partner  in  a  particular  transaction  with  B.,  C, 
and  D.,  who  were  before  partners  ;  B.,  C,  and  D.,  become  bankrupts,  after 
which  A.  pays  a  debt  due  from  himself  and  them  to  a  joint  creditor ;  it  was  de- 
termined that  these  three  partners  constituted  but  one  *debtor  to  A.,  and  that 
he  might  recover  from  B.,  the  proportion  of  B.,  C,  and  D.,  towards  the  joint 
debt ;  B.  not  having  pleaded  in  abatement,  (k) 

So,  where  A.,  B.,  and  C,  having  dissolved  partnership,  C,  after  such  disso- 
lution, drew  bills  in  the  partnership  firm  in  favour  of  D.,  he  not  knowing  of 
such  dissolution ;  upon  which  D.  brought  his  action  against  all  the  former 
partners,  and  C.  having  pleaded  his  bankruptcy,  D.  entered  a  nolle  prosequi  as 
to  him,  and  recovered  judgment  against  A.  and  B.,  which  was  afterwards  satis- 
fied by  the  attorney  of  A.  and  B.,  who  advanced  part,  and  borrowed  the  rest 
of  the  money  on  their  joint  credit :  it  Avas  holden,  that  the  sum  so  paid  in  sat- 
isfaction of  the  judgment,  might  be  recovered  in  a  joint  action  by  A.  and  B. 
against  C.(Z) 

But  where  A.  and  B.  are  engaged  in  a  partnership  in  insuring  ships,  &c. 
which  is  carried  on  in  the  name  of  A.,  and  A.  pays  the  whole  of  the  losses, 
such  a  partnership  being  illegal  by  stat.  6  Geo.  1.  c.  18.,  A.  cannot  maintain  an 
action   against  B.  to  recover  a  share  of  the  money  that  has  been  so  paid.(m) 

Though,  if  two  persons  jointly  engage  in  a  stock-jobbing  transaction,  and 
incur  losses,  and  employ  a  broker  to  pay  the  differences,  and  one  of  them,  with 
the  privity  and  consent  of  the  other,  repay  the  broker  the  whole  sum,  he  may 
recover  a  moiety  from  his  companion  in  an  action  for  money  paid  to  his  use, 
notwithstanding  the  stat.  7.  Geo.  2.  c.  8.(n) 

One  partner  may  maintain  an  action  against  his  copartner,  for  money  re- 
ceived to  the  separate  use  of  the  former,  and  wrongfully  carried  to  the  part- 
nership account,  (o) 

But  where  A.,  B.,  and  C.,  became  partners  in  insuring  ships,  (contrary  to 
the  stat.  6  Geo.  1.  c.  18.  s.  12. ;)  and  it  was  agreed  that  the  policies  should 
be  underwritten  in  the  name  of  A.  only,  several  policies  were  effected,  and  the 
premiums  received  by  C.  and  D.  as  brokers  :  it  was  determined  that  A.  could 
not  recover  those   premiums  from  C.  and  D.  ( p) 

Where  two  persons  enter  into  articles  of  partnership  for  a  term  of  years,   in 


(i)   Wright  v.  Hunter,  1  East  Rep.  20.  (n)  Petrie  and  another  v.  Hannay,  bart.  ,3 

(k)   Wright  v.  Hunter,  1  East  Rep.  20.  Term  Rep.  418.      See  also    Yaikney  v.  Rey~ 

(I)   Osborne  and  another  v.  Harper,  5  East  nous,  4  Bur.  2069. 
Rep.  225.  (o)   Smith  v.  Barrow,  2  Term  Rep.  476. 

(m)  Mitchell  and  others  v.  Cockburne,  2  H.         (p)  Booth  and  others  v.  Hodgson  and  ano- 

Bl.  379.     See  also  Auhert  v.  Maze,  2  Bos.  &  ther,  6  Term  Rep.  405. 
Pul.  371.  S.  P. 

*519 


Chap.  1.]  Of  the  Liability  oj  Partners-  519 

which  is  a  covenant  to  account  yearly,  and  to  adjust  and  make  a  final  settlement 
at  the  expiration  of  the  partnership,  and  they  dissolve  the  partnership  before 
the  term  expires,  and  account  together,  and  strike  a  balance  which  is  in  favour 
of  the  plaintiff,  including  several  itc?ns  not  connected  with  the  partnership,  and 
the  defendant  promises  to  pay  it,  an  action  of  assumpsit  lies  on  such  express 
promise.(^) 

If  two  persons  are  in  the  habit  of  jointly  purchasing  lots  of  cattle  from  the 
breeders,  and  afterwards  selling  them  in  smaller  parcels  ;  and  upon  *the  sale  of 
part  of  a  lot,  the  buyer  give  them  a  bill  of  exchange  ;  and  the  remaining  part  of 
the  lot  continues  unsold,  and  the  accounts  between  the  joint  purchasers  are  not 
settled  ;  and  if  one  of  these  joint  purchasers  indorse  this  bill  to  the  other,  who, 
upon  its  dishonour,  promises  to  pay  the  indorsee  one  moiety,  upon  his  provid- 
ing for  the  whole  bill,  it  has  been  held,  that  he  cannot  maintain  assumpsit,  for 
such  moiety. (r) 

If  a  member  of  a  London  bank  be  partner  with  a  country  bank,  and  at  the 
dissolution  of  the  partnership,  the  country  bank  be  indebted  to  the  London  bank; 
and  the  London  house  continue,  without  any  alteration  in  the  mode  of  keeping 
the  accounts,  to  make  advances  to  the  country  house,  and  to  receive  payments 
from  it ;  and  after  the  application,  by  the  London  house,  of  the  payments  re- 
ceived to  the  debt  due  at  the  time  of  the  dissolution,  there  remains  a  balance  due 
to  the  London  house,  assumpsit  will  lie  for  its  recovery.  But  if  one  partner 
is  a  member  of  two  firms,  an  action  of  assumpsit  cannot  be  maintained  by  one 
firm  against  the  other  after  the  death  of  such  member,  for  a  debt  due  during  his 
life,  (s)  If  upon  the  dissolution  of  a  partnership,  one  of  the  partners  admit  a 
sum  to  be  due  from  him,  an  action  will  lie  upon  an  implied  without  any  ex- 
press promise,  (t)  So,  it  has  been  ruled,  that  if  upon  the  dissolution  of  a  part- 
nership, one  of  the  partners  admits  a  sum  to  be  due  from  him,  and  offer  to 
pay  it,  if  his  copartner  will  perform  a  condition  ;  the  copartner  may  main- 
tain an  action  on  the  implied  assumpsit,  without  the  performance  of  the  condi- 
tion, (u) 

(7)  Foster  v.  Allanson,  2  Term  Rep.  479.         (s)  Bo.ianquet  v.  Wray,  6  Taunt.  598.  and 

Moravia  v.  Levy,  lb.  433.  n,  a.  2  Mar.  319. 

(r)  Robson  v.  Curtis,  1  Stark.  79. ;  and  see         (t)  Rackstraw  v.Imber,  1  Holt,  369. 
Venning  v.  Leckie,  13  East,  7.  (it)  Ibid. 


'520 


531  Of  Contracts  by  Master  and  Servant.   [Part  HI. 


'CHAPTER  II. 


OF  CONTRACTS  BY  MASTER  AND  SERVANT. 

From  the  relation  subsisting  between   master  and  servant,  the  subject  of  the 
present  chapter  may  be  considered  under  the  following  heads  : 

1.  WHAT  CONTRACTS  MADE  BY  A  SERVANT  SHALL  BIND  HIS  MAS- 
TER. 

2.  IN  WHAT  CASES  THE  MASTER  IS  ENTITLED  TO  THE  EARNINGS 
OF  HIS  APPRENTICE  OR  SERVANT. 

3.  OF  THE  SERVANT'S  LIABILITY  TO  HIS  MASTER  UPON  HIS  CON- 
TRACT OF  HIRING. 

4.  OF  THE  MASTER'S  LIABILITY  FOR  WAGES ;  AND  OF  THE  DISSOLU- 
TION  OF  THE  CONTRACT  OF  HIRING. 

5.  OF  THE  MASTER'S  LIABILITY,  TO  PROVIDE  MEDICINE,  &c.  FOR  HIS 
SERVANT  IN  SICKNESS  ;  AND  ALSO  NECESSARIES  FOR  HIS  APPREN- 
TICE. 


1.    WHAT  CONTRACTS  MADE  BY  A  SERVANT  SHALL  BIND  THE  MAS- 
TER. 

In  general  a  master  is  liable  for  acts  done  by  his  servant  in  the  exercise  of 
his  official  employment.  And  the  reason  of  this  liability  is  said  (a)  to  arise 
from  the  relation  subsisting  between  master  and  servant ;  *for,  as  in  strictness, 
every  one  ought  to  transact  his  own  affairs,  and  it  is  by  the  favour  and  indul- 
gence of  the  law  that  he  can  delegate  the  power  of  acting  for  him  to  another, 

(a)  Bac.  Abr.  tit.  Master  and  Servant,  K. 
*521  *522 


Chap-  2.]     Of  Contracts  by  Master  and  Servant'        522 

it  is  highly  reasonable  that  he  should  answer  for  such  substitute,  and  that  his 
acts  should  be  deemed  the  acts  of  the  principal.  Therefore  where  a  bailiff  or 
servant  hath  authority  from  his  master  to  buy  or  sell  goods,  &c.  for  him,  he 
shall  be  answerable  for  the  contract  made  by  his  bailiff  or  servant  relating  to 
the  sale  of  them.(£)  So,  where  a  servant  usually  buys  for  the  master  upon 
credit,  and  the  servant  buys  some  things  without  the  master's  order,  yet  if  the 
trader  trusted  the  master  he  shall  be  chargeable,  (c)  So,  in  Sir  Robert  Way- 
land'1  s  case,(d)  where  it  was  proved,  that  he  used  to  give  his  servant  money  ev- 
ery Saturday  to  defray  the  charges  of  the  foregoing  week,  the  servant  kept 
the  money  ;  yet  per  Holt  Ch.  J.  "  The  master  is  chargeable,  for  the  master  at 
his  peril  ought  to  take  care  what  servant  he  employs  ;  and  it  is  more  reasona- 
ble that  he  should  suffer  for  the  cheats  of  his  servant  than  strangers  and  trades- 


men." 


And  in  the  case  of  Hazard  v.  Treadwell,(e)  where  the  defendant,  who  was 
a  considerable  dealer  in  iron,  and  known  to  the  plaintiff  as  such,  though  they 
had  never  dealt  together  before,  sent  a  waterman  to  the  plaintiff  for  iron  on 
trust,  and  paid  for  it  afterwards.  He  sent  the  same  waterman  a  second  time 
with  ready  money,  who  received  the  goods,  but  did  not  pay  for  them.  It  was 
ruled,  that  the  sending  the  waterman  upon  trust  the  first  time  and  paying  for 
the  goods,  was  giving  him  credit,  so  as  to  charge  the  defendant  upon  the  se- 
cond contract. 

Again,  in  the  case  of  Precious  v.  Abel,(f)  which  was  an  action  for  work 
done  as  a  farrier  in  shoeing  and  physicking  the  defendant's  horse :  the  defence 
was,  that  the  defendant,  by  an  agreement  with  his  groom,  allowed  him  five 
guineas  a  year,  for  which  he  was  to  keep  the  horses  properly  shod,  and  furnish 
them  with  proper  medicines  when  necessary.  Lord  Kenyon  Ch.  J.  held,  that 
it  was  no  defence  to  the  action,  unless  the  plaintiff  knew  of  this  agreement, 
and  expressly  trusted  the  groom.  That  if  the  servant  buys  things  which  come 
to  his  master's  use,  the  master  should  take  care  to  see  them  paid  for;  for  a 
tradesman  has  nothing  to  do  with  any  private  agreement  between  the  master 
and  servant. 

And  in  the  case  of  Gratland  v.  Freeman,(g)  which  was  an  action  of  assump- 
sit for  beer  sold  by  the  plaintiff,  a  publican,  to  the  defendant.  On  the  trial, 
it  appeared  that  the  defendant  had  been  in  the  habit  of  dealing  with  the  plain- 
tiff upon  credit,  and  had  paid  him  occasionally  when  the  bill  amounted  to  a  cer- 
tain sum.  After  paying  up  all  arrears,  *the  defendant  told  the  plaintiff's  servant, 
who  brought  the  beer,  that  he  would  run  up  no  more  bills  with  the  plaintiff,  but 
would  pay  for  the  beer  as  it  came  in  ;  and  the  defence  was,  that  he  had  paid 
the  money  to  the  servant.  Lord  Eldon  Ch.  J.  said,  "  The  defendant  must  show 
that  the  master  had  notice  of  this   change  in  the  mode  of  dealing."      It  was 


(b)  F.  N.  B.  120.  G.     See  also  Doct.  and  also  Rusby  v.  Scarlett,  post.  524.  S.  P. 
Stad.  Dial.  2.  c.  42.  (c)   1  Stra.  506. 

(c)lShow95.     3Salk.  234.    Holt's  Rep.         (/)  1  Esp.  Rep.  350. 
460.  (g)  3  Esp.  Rep.  85. 

(<f)  3  Salk.  234.     1  Ld.   Rayin.  225.     Sea 


k523 


523         Of  Contracts  by  Master  and  Servant.     [Part  III. 

then  contended  by  the  counsel  for  the  defendant,  that  this  notice  having  been 
given  to  the  plaintiff's  servant,  and  the  money  having  been  paid  to  the  servant, 
the  master  should  be  bound  by  it.  But  his  lordship  said,  "  He  thought  not. 
It  was  a  change  in  the  usual  mode  of  dealing  suggested  by  the  defendant  him- 
self; and  as  he  had  personal  dealings  with  the  master,  in  a  particular  mode,  no- 
tice to  the  servant  alone  of  a  change  in  that  mode  would  not  be  sufficient ;  the 
defendant  must  show  that  the  master  himself  had  notice  of  it,  or  he  could  have 
no  defence  to  the  action."  The  defendant  being  unable  to  establish  that  fact, 
the  plaintiff  recovered  the  amount  of  his  demand. 

But  where  a  man  gives  his  servant  money  to  pay  for  commodities  as  he  buys 
them,  upon  a  contract  or  an  understanding  between  the  tradesman  and  the  mas- 
ter to  deal  for  ready  money  ;  if  the  servant  embezzles  the  money,  the  master  is 
not  liable.  Thus,  in  the  case  of  Stubbing  v.  Heintz,(h)  which  was  an  action 
of  assumpsit  for  goods  sold  and  delivered.  The  defendant  contracted  with  the 
plaintiff  to  serve  him  with  all  kinds  of  meat  at  a  certain  price  per  pound  for  rea- 
dy money.  The  cook  was  accustomed  to  order  the  meat,  and  when  the  bill 
amounted  to  a  few  shillings  or  a  guinea,  used  to  pay  it ;  in  general  she 
paid  once  a  week,  on  a  Monday  morning ;  and  the  defendant  always  gave  the 
servant  the  money  to  pay  the  bills.  This  course  of  dealing  continued  for  a  long 
time,  and  several  successive  servants  paid  the  money  they  received  from  the  de- 
fendant as  above  stated.  At  length  the  defendant  got  another  cook,  and  gave 
her  money  as  usual,  but  she  did  not  pay  the  bills  as  the  others  had  done,  but 
suffered  them  to  be  in  arrear  33Z.  3s.  3d.  She  then  ran  away  from  the  defen- 
dant's house,  after  which  the  defendant  was  called  upon,  for  the  first  time,  to 
pay  this  sum  of  money,  and  on  his  refusal,  the  plaintiff  brought  the  present  ac- 
tion. The  defendant  also  proved,  that  when  his  family  were  absent  from  town 
in  the  summer,  a  servant,  who  was  left  to  take  care  of  the  house,  had  meat  for 
her  own  support  from  the  plaintiff,  and  paid  him  for  the  same,  but  he  never  de- 
manded this  sum  of  money  from  that  servant,  or  mentioned  to  her  that  it  was 
owing  to  him  from  the  defendant.  Lord  Kenyon  Ch.  J.  said,  "  Nothing  could 
be  clearer  than  that  where  a  man  gives  his  servant  money  to  pay  for  commodi- 
ties as  he  buys  them,  if  the  servant  pockets  that  money,  the  master  will  not  be 
liable  to  pay  it  over  again.  But  if  the  master  employs  his  servant  to  buy  things 
on  credit,  he  will  be  liable  to  *whatever  extent  the  servant  shall  pledge  his 
credit.  Here  the  contract  between  the  parties  was  to  deal  for  ready  money  : 
and  the  plaintiff  when  he  let  the  bill  run  on  to  such  an  amount  as  the  sum  now 
claimed,  was  giving  credit  to  the  servant,  and  not  to  the  defendant.  The  de- 
fendant had  not  entered  into  a  new  contract,  but  still  thought  that  he  was  deal- 
ing on  the  same  terms  as  before."  A  verdict  was  accordingly  found  for  the  de- 
fendant. 

So,  in  the  case  of  Pearcev.  Roger s,(i)  which  was  an  action  brought  by  the 


(h)  Poake's  Cas.  N.  P.  47.      See  also  1         (t)  3Esp.  Rep.  214.     See  also  Meander  v. 
Show.  95.  S.  P.  Conyers,  2  Stark.  Rep.  281 . 

*524 


Chap.  2.]     Of  Contracts  by  .Master  and  Servant.         524 

plaintiff,  who  was  a  publican,  to  recover  from  the  defendant  the  amount  of  a 
score  for  beer,  supplied  the  defendant's  family.  The  defendant  dealt  with  the 
plaintiff  for  the  porter  used  in  his  family,  and  was  in  the  habit  of  paying  ready 
money  to  the  plaintiff  for  a  certain  quantity  of  porter  which  was  allowed  for 
the  family  ;  and,  in  fact,  though  the  beer  for  which  the  action  was  broii'rht  had 
been  delivered  at  the  defendant's  house,  it  had  been  carried  in  clandestinely  by 
the  maid  servant,  for  her  own  use,  and  that  of  the  defendant's  wife's  mother  ; 
but  it  did  not  appear  that  the  plaintiff  knew  of  this  circumstance.  Lord  Eldon 
Ch.  J.  said,  "  that  to  allow  such  a  demand  would  be  to  put  it  in  the  power  of 
servants  and  tradesmen  to  ruin  the  master  ;  but  where  the  master  was  in  the 
habit  of  paying  ready  money  for  part  of  the  goods  furnished,  it  was  sufficient 
notice  to  the  tradesmen  that  he  considered  those  only  as  furnished  to  his  family, 
to  put  the  tradesman  on  his  guard,  and  to  make  it  incumbent  on  him  to  satisfy 
himself  that  the  goods  were  really  for  the  use  of  the  master's  family ;  that 
where  the  tradesman  suffered  his  goods  to  be  so  delivered,  and  without  inform- 
ing the  master,  if  in  point  of  fact  they  did  not  come  to  his  use,  he  should  hold 
him  not  to  be  liable  :  that  in  this  case,  the  porter  not  having  been  delivered  to 
the  defendant's  use,  there  was,  in  his  opinion,  no  pretext  to  charge  him."  The 
plaintiff  was  accordingly  nonsuited. 

So,  where  a  tradesman  hud  had  no  dealings  with  the  master,  but  with  the 
coachman,  to  whom  the  master  gave  money  monthly  for  the  purpose  of  buy- 
ing oats  and  hay  for  his  horses  ;  and  the  tradesman  made  no  application  to  the 
master  for  his  demand  until  a  year  after  the  goods  were  delivered,  Lord  Kenyon 
Ch.  J.  ruled,  that  the  master  was  not  liable.  (A) 

But  in  the  case  of  Rusby  v.  Scarlett, (I)  which  was  an  action  brought  to 
recover  the  price  of  a  quantity  of  hay  and  straw  sold  by  the  plaintiff  for  the  use 
of  the  defendant's  horses.  The  plaintiff  proved  the  delivery  of  a  quantity  of 
hay  and  straw  at  the  defendant's  stables,  and  the  delivery  of  bills  of  parcels  ; 
but  there  was  no  evidence  of  his  having  ever  seen  the  defendant,  or  of  his 
having  ever  received  any  orders  from  him,  or  that  he  ever  received  from  him  di- 
rectly any  payment  or  money  *whatever.  And  the  defence  was,  that  the  de- 
fendant had  given  money  to  his  coachman  to  pay  the  bills,  which  he  had  embez- 
zled. It  appeared  that  the  defendant  had  kept  a  book  with  the  servant;  in 
which  were  entered  the  articles  procured  by  the  servant,  and  the  sums  advan- 
ced to  him  ;  but  there  did  not  appear  to  be  any  connection  between  the  sums 
advanced  to  the  servant,  and  the  demands  which  he  was  to  pay ;  but  the  money 
was  advanced  generally.  Lord  EUenborough  Ch.  J.  said,  "  The  general  rule 
to  subject  the  principal  to  the  act  of  the  agent  is  this. — The  agency  must  be 
antecedently  given,  or  be  subsequently  adopted.  There  must,  in  the  latter  case, 
be  some  act  of  recognition  ;  but  if  I  authorise  a  man  to  obtain  credit  on  my 
account,   and  he  gets  the  goods  on  such  credit,  unless  I  have  paid  him,  I  am 


(ft)  E3p.  Ni.  Pri.  115.  3d  ed.      See  also         (0  5  Eep.  Rep.  76. 
Maunder  v.  Conyers,  2  Stark.  5581.  S.  P. 

61  *525 


525        Of  Contracts  by  Master  and  Servant.     [Part  III. 

myself  liable  :  but  I  go  further  ;  for  if  the  goods  were  taken  up,  and  the  money 
given  afterwards  to  the  servant  to  pay,  I  am  inclined  to  think  the  master  liable, 
if  the  servant  has  not  paid  over  the  money  ;  for  he  has  given  the  servant  au- 
thority to  take  up  goods  on  credit,  [t  is  therefore  material  to  see  when  the 
money  was  given.  If  the  servant  was  always  in  cash  beforehand  to  pay  for 
the  goods,  the  master  is  not  liable,  as  he  never  authorised  him  to  pledge  his 
credit ;  but  if  the  servant  was  not  so  in  cash,  he  gave  him  a  right  to  take  up  the 
goods  on  credit ;  and  I  think  he  would  be  liable,  as  the  servant  has  not  paid  the 
plaintiff,  though  he  might  have  received  the  money  from  the  defendant,  his  mas- 
ter."— The  jury  accordingly  found  a  verdict  for  the  plaintiff. 

But  where  a  master  forbids  a  tradesman  to  deliver  any  goods  except  his  ser- 
vant pays  for  them,  and  goods  are  afterwards  delivered  to  the  servant  upoa 
credit ;  the  master  shall  not  be  liable,  if  he  has  paid  the  servant  the  money  for 
them. (m)  So,  in  the  case  of  Hiscox  v.  Greenwood,{n)  which  was  an  action 
of  trover ;  it  appeared,  that  the  plaintiff's  chaise  having  been  damaged  by  the 
negligence  of  his  servant,  and  without  his  knowledge,  the  servant  had,  with- 
out acquainting  his  master,  taken  the  chaise  to  the  defendant,  who  was  a  coach- 
maker,  to  get  it  repaired  :  the  defendant  had  never  been  employed  by  the'plain- 
tiff  tas  his  coachmaker,  or  to  do  any  work  for  him.  Some  repairs  had  been 
done  to  it  to  a  very  small  amount.  The  defendant  refused  to  deliver  it  up  till 
he  was  paid  the  amount  of  his  demand,  contending  that  he  had  a  lien  on  the 
chaise,  on  account  of  the  work  which  he  had  done  to  it.  But  Lord  Ellenbor- 
ough  Ch.  J.  said,  "that  the  defendant  had  no  right  to  hold  the  chaise  as  a  lien. 
Whatever  claim  of  that  sort  he  might  have,  he  must  derive  it  from  legitimate 
authority  :  that  unless  the  master  had  been  in  the  habit  of  employing  the  trades- 
man in  the  way  of  his  trade,  it  should  not  be  in  the  power  of  the  servant  to 
bind  him  to  contracts  of  whieh  he  had  no  knowledge,  nor  to  which  he  gave  his  as- 
sent. It  was  *the  duty  of  the  tradesman,  when  he  was  employed,  to  have  en- 
quired of  the  principal  if  the  order  was  given  by  his  authority ;  but  having 
neglected  to  do  so  here,  and  the  master  having  never  employed  him,  the  master 
was  not  liable  to  the  demand  ;  and  the  detainer  of  the  chaise  was  unlawful." 

If  a  servant,  entrusted  to  sell  a  horse  for  his  master,  warrant  him  sound,  the 
master  is  bound  by  such  warranty,  even  though  the  servant  had  express 
orders  from  his  master  not  to  give  a  warranty ;  for  the  servant  at  the  time  of 
the  sale  and  warranty  is  acting  within  the  general  scope  of  his  employment  ; 
and  all  acts  so  done  will  bind  the  master  ;  and  such  acts  cannot  be  controlled  or 
limited  by  any  private  order  or  direction  of  the  master  not  known  to  the  party 
dealing  with  the  servant.  But  if  the  owner  of  a  horse  send  a  stranger  with  it 
to  a  fair  to  sell,  and  expressly  directs  him  not  to  wairant  the  horse,  and  the  lat- 
ter act  contrary  to   the  orders,  the   purchaser  can  only  have  recourse    to   the 


(m)  Biwnl.  64.  («)  4  Esp.  Rep.  174. 

'526 


Chap.  2.]     Of  Contracts  by  Master  and  Servant.        526 

man  who  actually  sold  the  horse,   and  the  owner  is  not  liable  on  the  warran- 
ty.^) 

So,  where  a  merchant  sent  his  servant,  who  had  been  used  to  transact  af- 
fairs of  that  nature  for  him,  with  a  note  drawn  upon  S.   E.,  with  orders  to  get 
either  bank  bills  or  money,  and  turn  them  into  exchequer  bills ;  the  servant,  in- 
stead of  doing  so,  got  B.  to  give  him  a  bank  bill  for  it,  with  which  be  bought 
exchequer  bills,  and  carried  them  to  his  master ;  and  before  the  bill  upon  S. 
E.  was  paid,  S.  E.  broke.     The  question  was,   whether  the  loss  should  fall 
upon  B.  or  upon  the  merchant.     At  the  trial,  Parker  Ch.  J.  was  first  of  opin- 
ion that  it  should  fall  upon  B.,  because  the  servant  acted  directly  contrary  to  his 
master's  orders,  and  B.,  by  furnishing   the  servant  with  a  bank  bill,  did  the 
master  no  service  at  all,  for  if  he  had  not,  the  servant  must  have  gone  and  re- 
ceived the  money  himself  from  S.  E.;  and  he  referred  to  the  case  of  Ward  v. 
Evans,  (p)  in  which  he  said  that  it  had  been  decided  that  a  servant  sent  to  re- 
ceive money  could  not  bind  his  master  by  receiving  a  bill ;    but  upon  the  sug- 
gestion of  one  of  the  jury,  that  whether   a  servant  who   was  used  to  act  upon 
the  credit  of  his  master,  went  against  his  orders  in  a  particular  instance,  was 
a  fact  that  could  not  be   known   to  a  third  person,    he   altered  his  opinion, 
and  a  verdict  was  given  against  the  master,  which  was  afterwards  attempted 
to  be  set  aside.     But  the  Court  were  all  of  opinion  that  it  was  right,  and  that 
the  master  was  chargeable  ;  for  a  servant,  by  transacting  affairs  for  his   mas- 
ter, does  thereby  derive  a  general  authority  and  credit  from  him  ;  and  if  this  gen- 
eral authority  should  be  liable   to  be  determined  for  a  time  by  any  particular 
instructions  *or  orders,  there  would  be  an  end  of  all  dealing  but  with  the  mas- 
ter, (q) 

2.  IN  WHAT  CASES  THE  MASTER  IS  ENTITLED  TO  THE  EARNINGS  OF 

HIS  APPRENTICE  OR  SERVANT. 

Whatever  an  apprentice  earns  by  his  labour,  whilst  he  remains  in  the  actual 
employ  of  the  master,  clearly  belongs  to  the  master.  So,  where  an  appren- 
tice leaves  his  master's  service,  and  is  employed  by  a  stranger,  the  master  is 
entitled  to  his  wages  or  earnings,  in  respect  of  such  employment  during  his 
apprenticeship.  (172)  Thus,  in  the  case  of  Barber  v.  Dennis, (r)  where  it  ap- 
peared that  the  plaintiff  had  her  apprentice  taken  from  her,  and  put  on  board  a 
Queen's  ship,  where  he  earned  two  tickets,  which  came  to  the  defendant's 
hands,  and  for  which  the  plaintiff  brought  trover.  It  was  agreed  the  action 
would  well  lie,  if  the  apprentice  were  a  legal  apprentice,  for  his  possession 
would  be  that  of  his  master,  and  whatever  he  earns  shall  go  to  his  master. 

(o)  Per  Ashhurst  Just,  in  Fcnn  v.  Harrison,  (p)  Ante,  278. 

3  T.  R.  761.     See  also  2  Campb.  Rep.  555.  (</)  Nicksonv.  Brohan,  10  Mod.  109.  See 

3  Esp.  Rep.  64.  See  also  Dow's  Rep.  44.  and  also  Thorold  v.   Smith,   1 1    Mod.  8. 

15  East  Rep.  45.  S.  P.  (>)  6  Mod.  69.  1  Salk.  6S.  S.  C. 

(122)  See  Trongoll  v.  Byers,  5  C6wen,48». 

*52T 


527  Of  Contract*  by  Master  and  Servant.     [Part  III. 

Holt  Ch.   J.  said,  he  would  understand  him  an  apprentice  or  servant  de  facto, 
and  that  would  suffice  against  the  defendant  being  a  wrong  doer. 

So,  in  the  case  of  Eades  v.  Vandcput,(s)  which  was  an  action  against  the 
captain  of  a  ship  of  war  by  the  master  of  an  apprentice,  to  recover  wages  for 
the  service  of  his  apprentice,  who,  having  been  impressed,  was  detained  on 
board  the  defendant's  ship.  The  only  witness  to  charge  the  defendant  with 
knowledge  was  the  apprentice  boy  himself,  who  swore  that  after  he  had  been 
impressed  and  carried  on  board  the  ship,  he  told  the  defendant,  the  captain, 
that  he  was  an  apprentice,  and  required  his  discharge,  which  was  refused. 
The  Court  were  of  opinion  that  the  evidence  of  the  boy  was  sufficient,  and  that 
the  captain  ought  to  have  made  enquiry  into  the  truth  of  what  the  boy  said  ; 
for  after  that  information  he  detained  him  at  his  peril  ;  and  it  was  admitted  that 
if  the  indentures  had  been  produced,  the  defendant  would  have  been  bound  to 
have  discharged  the  boy. 

So,  in  the  case  of  Curtcis  v.  Bridges,(t)  it  was  held,  that  if  the  master  of  one 
ship  takes  a  servant  that  belongs  to  the  master  of  another  ship,  whatever  wages 
he  receives  from  the  King  upon  his  account  shall  be  to  the  use  of  his  first  mas- 
ter, being  acquired  by  the  labour  and  industry  of  his  servant. 

But  though  the  master  is  clearly  entitled  to  the  earnings  of  his  apprentice,  it 
may  be  doubted  whether  the  same  rule  applies  to  the  case  of  hired  servants. 
All  the  cases  which  occur  in  the  books  relate  to  *apprentices  only.  It  is,  how- 
ever, observed,^/)  with  regard  to  hired  servants,  that  the  master's  proper  reme- 
dy in  all  cases,  except  those  in  which  the  servant  is  intentionally  employed  on 
his  master's  account,  seems  to  be  an  action  either  against  the  employer  for  loss 
of  service,  if  he  knew  of  the  first  retainer,  or  against  the  servant  himself  for 
breach  of  his  contract,  such  a  case  rather  importing  the  master's  right  to  dam- 
ages for  the  injury  sustained  by  the  consequences  of  the  6econd  retainer,  than  a 
right  to  the  profits  accruing  from  the  employment. 

3.  OF  THE  SERVANT'S  LIABILITY  FOR  BREACH  OF  HLS  IMPLIED  UN- 
DERTAKING TO  SERVE  HIS  MASTER  WITH  DILIGENCE  AND  FIDELI- 
TY, &c. 

Upon  every  contract  of  hiring  there  is  an  undertaking  implied  on  the  part  of 
the  servant,  that  he  will  serve  his  master  with  care,  diligence,  and  fidelity  ;  so 
that  wherever  the  master  sustains  an  injury  by  reason  of  any  negligence  or  mis- 
conduct on  the  part  of  his  servant,  the  former  may  maintain  an  action  against 
the  latter,  either  of  assumpsit,  or  on  the  case  in  tort  to  recover  a  compensation 
by  way  of  damages  for  breach  of  his  duty.  Thus,  if  A.  is  employed  by  B.  to 
sail  from  England  to  the  Indies,  and  A.  covenants,  that  he  or  his  servants  will 
not  thence  import  any  calicoes,  &ic,  and  A.  retains  C.  as  his  servant  in  this 
voyage,  and  acquaints  him  with  the  covenants,  and  notwithstanding  C.  falsely 


(s)  Mich.  25  Geo.  3.  B.  R.  5    East    Rep.  that    an   action  of  indebitatus  assumpsit  for 

39  n.  a.  work  and  labour  will  lie  in  such  case. 

(t)  Comb.  43°.  See  also  Lightly  v.    Clous-         (u)  Co.  Lit.    117.  a.  n.  1.  Bac.  Abr.  tit. 

tvn,  1  Taunt.  112.  where  it  was  determined  Master  and  Servant. 

#528 


Chap.  2.]        Of  Contracts  by  Master  and  Servant,  a-28 

and  fraudulently  briogs  thence  certain  calicoes,  &c,  A.  shall  have  an  action 
against  C,  for  though  no  action  lies  by  a  master  for  the  bare  breach  of  his 
command,  yet  if  a  servant  does  any  thing  falsely  and  fraudulently,  to  the  dam- 
age of  his  master,  an  action  will  lie.  (u) 

So,  if  a  merchant's  servant  takes  his  master's  goods  that  are  arrived  at  a  port 
in  England,  and  before  payment  of  the  customs,  lands  ihem,  per  quod  the  goods 
are  forfeited  and  seized  by  the  king  ;  the  master  may  have  an  action  of  tres- 
pass upon  the  case  against  his  servant,  (w)  And  if  a  servant  drives  his  master's 
cart,  and  by  his  negligence  suffers  the  cattle  to  perish,  an  action  upon  the  case 
lies  against  him. (a-)  So,  if  a  man  deliver  a  horse  to  his  servant  to  go  to  mar- 
ket, or  a  bag  of  money  to  carry  to  London.,  which  he  neglects  to  do,  the  mas- 
ter may  h  ave  an  action  of  account  or  detinue  against  him :  or,  he  might  now 
maintain  an  action  of  assumpsit  for  breach  of  his  implied  promise,  (y)  But  if 
a  man  delivers  money  to  his  servant  to  carry  to  such  a  place,  and  he  is  robbed, 
the  servant  shall  not  answer  for  it ;  for  a  servant  only  undertakes  for  his  dili- 
gence and  fidelity,  and  not  for  the  strength  and  *security  of  his  defence,  and 
therefore  shall  not  be  obliged  to  preserve  his  master's  property  at  all  adven- 
tures, (z) 

4.  OF  THE  CONTRACT  BETWEEN  MASTER  AND  SERVANT  FOR  WAGES  ; 
AND  OF  THE  SERVANT'S  RIGHT  TO   A  MONTH'S  WARNING,  &c. 

If  a  person  retains  a  servant,  and  agrees  to  pay  him  so  much  by  the  day, 
month,  or  year,  the  servant  may  have  an  action  against  the  master  on  the  con- 
tract, or  against  his  executors  ;  for  every  such  retainer  will  be  presumed  to  be 
in  consideration  of  wages,  unless  the  contrary  appears,  (a)  So,  if  a  man  be  re- 
tained in  London,  to  serve  beyond  sea,  he  may  have  an  action  for  his  wages  in 
England;  and  lay  the  venue  in  any  county. (/;) 

Where  a  person  is  hired  as  an   assistant,  or  deputy,  to  perform    the  duties 
of  a  particular  office,  at  a   certain  yearly  salary,  and  the  principal  is   afterwards 
appointed  to  another  situation,    and  he    employs   the   same  person   to   trans- 
act the  business  of  both  offices,  the  assistant   is  not  entitled  to  any  increase   of 
salary  without   some   agreement  or   promise  of  the    principal.     Thus,  in   the 
case  of  Bell  v  Drummond,  executor,  &c.  (c)    which  was  an  action  of  assumpsit 
for  work  and  labour   done  and  performed  by  the  plaintiff  for  Paterson,  the  de- 
fendant's testator ;  it  appeared  that  the  testator  was  clerk  to  the   commissioners 
of  the  land-lax,  and  that  the  plaintiff  had  done  the  business  of  his  office  at  a  sala- 
ry of  100/.  a  year  :  that  afterwards,  on   new  duties  being  imposed,  the  testator 
was  appointed  clerk  to  the  commissioners  of  those  duties,  and  the   plaintiff    also 
transacted    that  business,  but  no  agreement  had   been  made  as  to  any  increase 


[v)   1  Sid.  298.  1  Lev.  138.  (~)  Bac.  Abr.  tit.  Master  and  Servant,  H. 

[w)  Cro.  Jac.  265.  Lane  65.  («)  Ibid. 


(x)  7  H.  4.  14.  Bro.    tit.   Action  sur    case         \b)  Brownl.  54. 
31-  (c)  Peake's  Cas.  N.  P.  45 

(y)  Vide  21  H.  1.  11.  Moor  24S. 


'S'ZQ 


529  Of  Contracts  by  Master  and  Servant.     [Part  III. 

of  salary,  though  the  labour  of  the  office  was  considerably  increased.  It  was 
proved,  that  the  plaintiff  having  demanded  an  additional  stipend,  the  testator 
had  desired  the  witness  (as  a  friend  to  both  parties)  to  consider  what  ought 
to  be  allowed  the  plaintiff.  That  accordingly  the  witness  did  proceed  to 
make  an  estimate  ;  but  before  he  had  finally  made  up  his  mind  the  testator 
died.  Lord  Kenyon  Ch.  J.  said,  "  that  had  the  plaintiff's  case  rested  wholly  on 
the  fact  of  the  new  duty  being  imposed  upon  him,  he  should  not  think  it  such  a 
case  as  would  have  entitled  him  to  come  into  a  court  of  justice  for  an  additional 
stipend  on  a  quantum  meruit  ;  if  it  was,  every  porter  in  a  shop,  or  clerk  in  an 
office,  would,  upon  an  increase  of  his  master's  business,  be  equally  entitled  to 
demand  an  increase  of  wages.  But  upon  the  evidence  produced,  it  ap- 
peared clearly  that  the  testator  himself  thought  that  he  ought  to  pay  some- 
thing, and  the  only  matter  in  controversy  between  *him  and  the  plaintiff  was 
the  quantum  of  the  additional  allowance."     The  plaintiff  obtained  a  verdict. 

If  a  slave  comes  over  from  the  West  Indies,  and  continues  in  the  service  of 
his  master  in  England,  he  is  not  entitled  to  wages,  unless  there  has  been  some 
agreement  or  contract  of  service  for  wages.  Thus,  in  the  case  of  Alfred  v. 
Marquis  of  Fitzjames,(d)  which  was  an  action  of  assumpsit  for  servant's  wa- 
ges. It  appeared  in  evidence,  that  the  plaintiff  came  over  from  Martinique 
with  the  Dutchess  of  Fitzjamcs.  His  father  and  mother  had  been  slaves  on 
an  estate  belonging  to  her  in  that  island.  He  had  entered  into  her  service  in 
Martinique  before  her  marriage  with  the  Marquis,  and  continued  to  serve  her 
after  her  marriage  ;  and  the  Marquis  found  him  with  necessaries  of  every  de- 
scription. There  was  no  contract  for  any  hiring  for  wages ;  but  a  witness  said, 
that  the  Marquis  had  been  heard  to  promise  to  pay  him  wages.  Lord  Ken- 
yon, Ch.  J.  said,  "  It  was  his  decided  opinion,  that  up  to  the  time  of  the  prom- 
ise to  pay  wages,  which  the  witness  had  said  the  defendant  had  made,  the  plain- 
tiff had  no  title  to  recover,  as  there  was  no  original  contract  of  service 
for  wages." 

A  contract  to  pay  a  certain  sum  per  annum,  in  consideration  of  services  to  be 
performed,  is  an  entire  contract  for  a  year,  and  without  a  full  year's  service,  the 
servant  is  not  entitled  to  any  part  of  his  salary.  This  was  settled  in  the  case  of 
The  Countess  of  Plymouth  v.  Throg?norton,(e)  which  was  an  action  of  debt, 
wherein  the  plaintiff  declared  upon  a  writing,  whereby  the  defendant's  testator 
had  appointed  the  plaintiff's  testator  to  receive  his  rents,  and  promised  to  pay 
him  100/.  per  annum  for  his  service,  and  shows  that  the  defendant's  testator 
died  three  quarters  of  a  year  after,  during  which  time  he  served  him,  and  de- 
mands 75/.  for  the  three  quarters  ;  judgment  for  the  plaintiff  in  C.  B.  by  nil  di- 
cit.  But  upon  error  brought  in  K.  B.  the  judgment  was  reversed  ;  it  being  held, 


(d)  3  Esp.  Rep.  3.  also  6  Term  Rep.  320.  S.  P.     3  Vin.   Abr. 

(e)  1  Salk.   65.     3  Mod.  153.  S.  C.     See     tit.  Apportionment,  fo.  8. 

*530 


Chap.  2-]     Of  Contracts  by  Master  and  Serva?it.  530 

that  without  a  full  year's  service  nothing  could  be  due,  and  that  it  was  in  na- 
ture of  a  condition    precedent.(173) 

But  with  regard  to  the  common  case  of  an  hired  servant,  it  is  said,(/)  that 
such  a  servant,  though  hired  in  a  general  way,  is  considered  to  be  hired  with 
reference  to  the  general  understanding  upon  the  subject,  that  the  servant  shall 
be  entitled  to  his  wages  for  the  time  he  serves,  though  he  do  not  continue  in  the 
service  during  the  whole  year.  So,  if  a  master  turns  away  his  servant  without 
a  previous  notice  or  warning,  (except  for  misconduct)  the  servant  is  entitled  to 
a  month's  wages. 

Thus,  in  the  case  of  Robinson  v.  Hendman,  (g)  which  was  an  action  of  as- 
sumpsit brought  by  the  plaintiff  to  recover  the  amount  of  a  month's  *wages,  on 
the  ground  of  his  having  been  discharged  by  the  defendant,  without  any  notice  or 
warning.  No  agreement  was  proved  to  the  effect  of  the  claim  ;  but  general 
usage  only  was  relied  on.  The  defendant  proved  that  the  plaintiff  was  negli- 
gent in  his  conduct,  frequently  absent  when  his  master  wanted  him,  and  often 
slept  out.  Lord  Kenyon,  Ch.  J.  said,  "  that  though  in  the  present  case  he 
thought  the  plaintiff  was  not  entitled  to  recover  on  account  of  his  misconduct,  he 
was  of  opinion,  that  if  a  master  turned  away  his  servant  without  warning,  or  pre- 
vious notice,  and  there  was  no  fault  or  misconduct  in  the  servant  to  warrant  it, 
he  ought  to  have  the  allowance  claimed,  of  a  month's  wages  ;  which  he  thought 
reasonable."  (h) 

5.  OF  THE  MASTER'S  LIABILITY  TO  PROVIDE  MEDICINE,  &c.  FOR  HIS 
SERVANT  IN  CASE  OF  ILLNESS  ;  AND  ALSO  NECESSARIES  FOR  HIS 
APPRENTICE. 

1.  Of  the  Master's  Liability  to  provide  Medicine,  &c] — Different 
opinions  have  been  held  upon  this  subject ;  and  but  three  cases  appear  in  print. 
In  two  of  them  it  was  determined  that  a  master  is  not  bound  to  provide  medical 
attendance,  &c.  for  his  servant,  who  meets  with  an  accident  in  his  master's  ser- 
vice. In  the  other,  which  was  tried  before  Lord  Kenyon  Ch.  J.  it  was  ruled, 
that  a  master  was  liable  for  medicines  furnished  to  his  servant  whilst  in  his  ser- 
vice. (174)     The   two  former  cases,  it  should  be  observed,  were   argued   and 

(/)  Per.  Lawrence,  Just.  6.  Term.  Rep.     Rep.  198.  4  Campb.  375. 
326.  (h)  See  also  Spain  v.  Arnott,   2  Stark.  Rep. 

(g)   3  Esp.    Rep.   235.  See  also,  1  Stark.     256. 

(173)  Where  a  servant  contracted  to  serve  his  master  for  a  year,  and  without  just  cause, 
left  his  service,  declaring  that  he  would  work  no  more ;  and  afterwards,  offered  to  return  to 
his  service  ;  the  master  is  not  bound  to  receive  him;  nor  can  the  servant  recover  a  pro  rata 
compensation  for  his  services.  Lantryv.  Parks,  S  Cowen,  63.  See  Marsh  v.  Rulesson,  1 
Wend.  514.     »- 

(174)  In  Dunbar  v.  Williams,  10  J.  R.  249,  it  was  decided,  that  no  action  will  lie  by  a 
physician  for  medical  assistance  rendered  to  a  slave,  without  the  knowledge  or  request  of 
the  master,  in  a  case  not  requiring  instant  and  immediate  attention  :  But,  it  seems,  that  if 
medical  or  other  assistance  be  rendered  to  a  slave  in  a  case  of  such  pressing  necessity  as  to 
admit  of  no  previous  application  to  the  master,  the  person  rendering  such  service,  would  be 
entitled  to  a  compensation  from  the  master,  on  an  implied  assumpsit  arising  from  the  legal 
obligation  of  the  master  to  provide  for  his  slave. 

♦531 


531  Of  Contracts  by  Master  and  Servant.     [Part.  III. 

determined  in  the  courts  of  Westminster-Hall ;  the  latter  was  only  a  determi- 
nation at  nisi  prius.  I  shall,  however,  present  them  to  the  reader  in  the  order 
which  they  were  determined. 

The   first  is,  Neivby  v.  Wiltshire,(i)    which  was  assumpsit  for  money  paid, 
laid  out,  and  expended  for  the  defendant's  use.     The  case  for  the  opinion  of  the 
court  stated,  that  the   defendant,  a  farmer,  sent  his  waggon,  in  May   1784,  to 
Cambridge ;  and  in  returning,  a  boy  that  had   been   sent  with  it  fell  from  the 
shafts  and  broke  hi3  leg :  that  the  boy  could  not  be  removed  out  of  the  parish 
where  the  accident  happened  on  account  of  the  danger  it  might  occasion  :  that 
the  plaintiff  was  overseer  of  the  parish  where  the  accident  happened,  and  took 
the  charge  of  getting  the  boy  cured  upon  himself  :  that  it  was  necessary  to  cut 
off  the  lew  ;  and  the  overseer  expended  in  and  about  the  cure,  32/.  :  that  after- 
wards the  boy  served  the   remainder  of  the  year  with   his   master ;  and  the 
action  was  brought  to  recover  from  the  defendant  the  expences  of  the  boy's  cure. 
Lord  Mansfield  Ch.  J.   said,  "  I  don't  applaud  the  humanity  of  the  master  in 
this  case  ;  he  does  not  enquire  after  his  servant  for  six  weeks  after  the  accident ; 
and  when  he  does,  *' he  passe*  by  on  the  other  side.'     I  think,  in  general,  a 
master  ought  to  maintain  his  servants,  and  take  care  of  them  in  sickness  ;  but 
the  question  now  is,  what  is  the  law  1  There  is,  in  point  of  law,  no  action 
against  the  master  to  compel  him  to  repay  the  parish  for  the  cure  of  his  servant : 
no  authority  whatsoever  has  been  cited  ;  and  it  seems  to  me  that  it  cannot  be. 
The  parish  is  bound  to  take  care  of  accidents  ;  they  do  their   duty  in  that  re- 
spect :  therefore  I  am  inclined  to  think  that  the  plaintiff  cannot  recover."     The 
other  judges  concurred  in  this  opinion,  and  the   Court  gave  judgment  for  the 
defendant. 

The  second  reported  case  on  this  subject,  is,  Scarman  v.  Castell,(k)  which 
was  an  action  to  recover  the  amount  of  an  apothecary's  bill  for  medicines  fur- 
nished to,  and  attendance  on  a  servant  of  the  defendant,  while  living  under  his 
roof.  The  plaintiff,  an  apothecary,  attended  the  servant  in  the  house  of  the  de- 
fendant, who  was  a  man  of  large  fortune,  but  it  was  not  proved  that  the  plain- 
tiff was  expressly  employed  by  the  defendant  ;  and  therefore  it  was  contended 
that  the  plaintiff*  could  not  recover  against  the  master.  But  Lord  Kenyan  Ch. 
J.  said,  "  that  he  was  of  opinion  that  a  master  was  obliged  to  provide  for  his 
servant  in  sickness  and  health,  and  that  he,  therefore;  was  liable  for  medicines 
furnished  to  his  servant,  while  in  his  service.  Not  that  hi3  servant  was  at  lib- 
erty to  go  abroad  and  contract  debts  for  medicines,  but  that  while  he  was  under 
his  master's  roof,  the  master  was  under  a  legal,  as  well  as  a  moral  obligation  to 
provide  the  necessary  medicines,  and  to  pay  for  such  as  were  administered  to 
his  servant  under  such  circumstances."  The  counsel  for  the  defendant  then 
cited  the  case  of  Newby  v.  Wiltshire ;  but  it  was  answered  by  the  plaintiff's 
counsel  that  the  case  cited  was  of  a  servant  ill  husbandry.     Lord  Kenyon  said, 


(i)  Easter  Term  25.  G.  3.  K.  B.  2  Esp.  Rep.     G.  3.  K.  B.  Coram  Lord  KenyonCh  J.  1  E«p. 
7  39.  Rep.  270.  and  cited  in  3  Bos.  &  Pul.  248. 

(Jt)  Sittings  at  West,  after  Hil.  Term.  35 
•532 


Chap.  2.]     Of  Contracts  by  Master  and  Servant-       532 

that  that  case  was  distinguishable  from  the  present.  lie  therefore  directed 
the  jury  to  find  a  verdict  for  the  plaintiff,  which  they  did  to  the  full  amount  of 
the  plaintiff's  bill. 

But,  in  the  case  of  Wennall  v.  Adney,(k)  which  was  also  an  action  of 
assumpsit  to  recover  the  amount  of  a  surgeon's  bill.  The  cause  was  tried  be- 
fore Le  Blanc  J.  at  Shrewsbury  assizes,  when  it  appeared  that  the  action  was 
brought  to  recover  Si.  18s.  6d.,  the  amount  of  a  bill  for  medical  attendance 
upon  a  servant  of  the  defendant,  who  had  his  arm  broken  while  driving  the 
defendant's  team,  and  who  had  been  hired  by  the  defendant  at  the  yearly  wages 
of  3/.  10s.  and  victuals  ;  that  the  accident  happened  nearer  the  house  of  the 
servant's  mother  than  that  of  the  defendant,  and  that  he  was  taken  to  his 
mother's  house  ;  that  the  accident  happened  in  one  parish,  that  the  house  of  the  ser. 
vant's  mother  was  situated  in  another,  and  the  defendant's  in  a  third ;  that  the  plain- 
tifF*\vho  was  the  surgeon  usually  employed  by  the  defendant,  accidentally  pass- 
ing near  the  mother's  house,  was  called  in  ,  and  desired  to  attend  her  son  ; 
at  which  time  nothing  was  said  about  the  defendant  paying  for  his  attendance, 
but  the  mother  observed  that  she  had  always  been  able  to  pay  her  way,  and 
hoped  she  should  do  so  still ;  that  during  the  time  of  the  servant's  confinement 
he  was  supplied  with  victuals  from  the  defendant's  house  ;  that  the  plaintiff 
first  delivered  his  bill  to  the  defendant,  but  afterwards  called  a  meeting  of 
the  parishioners  of  the  parish  in  which  the  mother's  house  was  situated,  and 
submitted  it  to  them  for  payment,  who  refused  to  discharge  it.  The  learn- 
ed judge  being  of  opinion  that  the  defendant,  not  having  employed  the  plain- 
tiff, or  made  any  promise  of  payment,  was  not  liable,  nonsuited  the  plaintiff. 
The  case  afterwards  came  before  the  Court  of  Common  Pleas  upon  a  rule  nisi 
for  setting  aside  the  nonsuit ;  and,  after  argument,  the  Judges  delivered  their 
opinions  seriatim,  that  the  action  would  not  lie  ;  and  the  Court  discharged  the 
rule. 

2.  Of  Necessaries  provided  for  Apprentices.] — A  master  is  bound  to 
provide  necessaries  for  his  apprentice.  Hut  in  an  action  for  necessaries  pro- 
vided for  an  apprentice,  if  the  declaration  states  "  that  the  defendant  is  indebt- 
ed, &c.  to  the  plaintiff  for  meat,  drink,  &c.  furnished  to  the  defendant's  appren- 
tice" the  plaintiff  must  prove  him  to  be  legally  an  apprentice  ;  and  if  the 
indenture  of  aprenticeship  has  not  been  legally  stamped,  the  plaintiff  cannot 
recover  on  those  counts  so  laid.  Thus,  in  Aldrige  v.  Ewen,(l)  which  was 
an  action  of  assumpsit  brought  to  recover  a  sum  of  money  for  the  board  and 
lodging  of  a  son  of  the  plaintiff,  whom  he  alleged  he  had  bound  apprentice  to 
the  defendant.  The  plaintiff  had  notice  to  produce  the  indenture  of  appren- 
ticeship. A  witness  proved,  that  he  had  been  employed  to  prepare  it,  and  that 
it  was  suggested,  it  would  save  expences  to  have  it  executed  at  Perth  in  Scot- 
land :  that  it  was  prepared  and  brought  from  Perth,  and  was,  in  fact,  execut- 
ed  at  Wapping  by  the  plaintiff;  but  that  there  was  no  stamp  to  it.     For   the 

(fc)  Mich.  Term.  43.  G.  3.  C.  B.  3  Bos.  &         {I)  3  Esp.  Rep.   188. 
Pul.  247. 

65  *633 


533       Of  Contracts  by  Master  and  Servant.      [Part  III. 

defendant,  it  was  contended  that  the  plaintiff  must  be  nonsuited,  as  he  had  not 
proved  any  legal  apprenticeship  of  the  person  for  whose  board  and  lodging  the 
plaintiff  sought  to  recover.  To  this  the  counsel  for  the  plaintiff  answered,  that 
he  could  prove  the  defendant  having  taken  the  young  man  as  an  apprentice, 
and  of  his  having  served  the  defendants  in  that  capacity  ;  and  that  that  would 
satisfy  the  averment  in  the  declaration.  But  Lord  Kenyon  Ch.  J.  said  :  "  The 
plaintiff  declares  on  a  contract  for  necessaries  furnished  to  the  defendant's  ap- 
prentice ;  and  this  is  so  stated  in  the  declaration.  To  entitle  the  plaintiff  to  re- 
cover, therefore,  it  must  appear,  that  the  relation  of  master  and  apprentice  le- 
gally subsisted  between  the  parties,  *as  it  is  in  that  character  only  the  defen- 
dant is  charged.  This  has  not  been  made  out  by  the  plaintiff.  An  apprentice 
can  only  be  bound  by  indenture  ;  that  indenture  must  be  legally  stamped. 
The  articles  of  apprenticeship  in  this  case  appear  to  have  been  prepared  at 
Perth  and  executed  at  Wapping,  and  to  have  no  legal  stamp.  They  are, 
therefore,  void ;  and  the  plaintiff  has  failed  in  proving  this  necessary  averment, 
and  cannot  recover," 
*534 


Chap.  3.]   Of  Contracts  toitk  a  Factor,  Broker,  ($*c.      535 


^CHAPTER  111. 


OF  CONTRACTS  WITH  A  FACTOR,    BROKER,  OR    AGENT,  ON    BEHALF 
OF  HIS  PRINCIPAL ;  AND  OF  THEIR  RESPECTIVE  LIABILITIES. 

In  mercantile  dealings  and  transactions  between  merchants,  contracts  for 
the  sale  and  disposition  of  merchandize,  are  most  commonly  entered  into 
through  the  intervention  of  factors,  brokers,  or  agents :  and  when  these  per- 
sons act  within  the  scope  of  the  authority  committed  to  them,  their  principals 
are  bound  by  such  contracts  as  they  may  enter  into.  There  is  a  material  dif- 
ference between  a  factor  and  broker,  not  in  name  only,  but  in  many  important 
particulars  ;  and  the  distinction  between  the  two  was  very  much  considered  and 
explained  in  a  recent  case  of  Baring  v.  Corrie,  in  which  the  Lord  Chief  Jus- 
tice Abbott  observes,  (a)  "  A  factor  is  a  person  to  whom  goods  are  consigned 
for  sale  by  a  merchant  residing  abroad,  or  at  a  distance  from  the  place  of  sale, 
and  he  usually  sells  in  his  own  name,  without  disclosing  that  of  his  principal ; 
the  latter,  therefore,  with  full  knowledge  of  these  circumstances,  trusts  him 
with  the  actual  possession  of  the  goods,  and  gives  him  authority  to  sell  in  his 
own  name.  But  the  broker  is  in  a  different  situation  ;  he  is  not  trusted  with 
the  possession  of  the  goods,  and  he  ought  not  to  sell  in  his  own  name. 
The  principal,  therefore,  who  trusts  a  broker,  has  a  right  to  expect  that  he 
will  not  sell  in  his  own  name."  And  Mr.  Justice  Holroyd  in  the  same 
case  says,  "  That  a  factor  who  has  the  possession  of  goods,  differs  ma- 
terially from  a  broker :  the  former  is  a  person  to  whom  goods  are  sent  or  con- 
signed, and  he  has  not  only  the  possession,  but  in  consequence  of  its  being 
usual  to  advance  money  upon  them,  has  also  a  special  property  in  them,  and  a 
general  lien  upon  them.  When,  therefore,  he  sells  in  his  own  name,  it  is  with- 
in the  scope  of  his  authority  ;  and  it  may  be  right,  therefore,  that  the  principal 
should  be  bound  by  the  consequences  of  such  sale  ;  amongst  which,  the  right 
of  setting  off  a  debt  due  from  the  factor  is  one.  But  the  case  of  a  * broker  is 
different ;  he  has  not  the  possession  of  the  goods,  and  so  the  vendee  cannot  be 
deceived  by  that  circumstance  ;  and  besides,  the  employing  of  a  person  to  sell 


(a)  2  Barn.  &  Aid.  142. 

•535  #536 


536      Of  Contracts  with  a  Factor,  Broker,  or  [Part  III. 

goods  as  a  broker  does  not  authorize  him  to  sell  in  his  own  name.  If,  there- 
fore, he  sells  in  his  own  name,  he  acts  beyond  the  scope  of  his  authority,  and 
his  principal  is  not  bound.  But  it  is  said,  that  by  these  means,  the  broker 
would  be  enabled  by  his  principal  to  deceive  innocent  persons.  The  answer, 
however,  is  obvious,  that  that  cannot  be  so,  unless  the  principal  delivers  over  to 
him  the  possession  and  indicia  of  property.  The  rule  stated  in  the  case  of 
Hern  v.  Nichols,  1  Saikeld,  289.  must  be  taken  with  some  qualifications  :  as, 
for  instance,  if  a  factor,  even  with  goods  in  his  possession,  acts  beyond  the 
scope  of  his  authority,  and  pledges  them,  the  principal  is  not  bound  ;  or  if  a 
broker,  having  goods  delivered  to  him,  is  desired  not  to  sell  them,  and  sells 
them,  but  not  in  market  overt,  the  principal  may  recover  them  back.  The 
truth  is,  that  in  all  cases,  excepting  where  goods  are  sold  in  market  overt,  the 
rule  of  caveat  emptor  applies." 

The  general  duty  of  -a  factor  or  agent  is  to  procure  the  best  intelligence  of 
the  state  of  trade  at  his  place  of  residence ;  of  the  course  of  exchange ;  of 
the  quantity  and  quality  of  goods  at  market,  their  present  price,  and  the  proba- 
bility that  it  may  rise  or  fall ;  to  pay  exact  obedience  to  the  orders  of  his  em- 
ployers ;  to  consult  their  advantage  in  matters  referred  to  his  direction  ;  to  ex- 
ecute their  business  with  all  the  despatch  that  circumstances  will  admit ;  to  be 
early  in  his  intelligence,  distinct  in  his  accounts,  and  punctual  in  his  correspon- 
dence.^) And  being  entrusted  with  the  possession,  as  well  as  the  disposal 
and  management  of  the  goods  of  his  principal,  he  is  bound  to  take  due  and 
proper  care  of  them ;  such  a  degree  of  care  as  a  prudent  man  would  take  of 
his  own  property,  (c)  Another  important  part  of  his  duty  is  the  protection  of 
the  property  of  his  principal  by  an  available  insurance(d) ;  and  also  to  take 
care  that  in  the  importation  and  exportation  of  goods,  proper  entries  are  made 
at  the  custom-house,  and  that  the  duties  are  duly  paid  thereon. (e)  So,  in  the 
sale  of  goods,  a  factor  should  not  only  observe  the  instructions  of  his  principal, 
but  when  left  to  exercise  his  own  judgment  and  discretion  in  the  disposal  of 
them,  he  should  use  his  utmost  skill  and  knowledge,  and  sell  for  the  best 
prices,  and  for  ready  money,  or  customary  credit  :(/)(175)  but  when  he  sells 
on  credit,  he  should  be  very  careful  to  deal  with  persons  of  known  responsibil- 

(6)  Vide   Mai.   Lex.   Mer.  81.      Beawes  Glaserx.   Coicie,  1  Maule  &  Sel.  52. 
Lex.  Mer.  45.  («)  Cro.   Jac.  265.     Bac.  Abr.  tit.  Mer- 

(c)   Coggs  v.  Barnard,  2  Ld.  Raym.  916,  chant  B.  Mollov,  329.  Mai.  Lex.  Mer.  83. 
917.  (/)  Wiliest"  Rep.  407.      3  Bos.  &  Pul. 

(rf)  Smith   v.   Lascelles,  2  Term  Rep.  —  4S9.     Bulstr.  103. 

(175)  See  Geyer  v.  Decker,  1  Yeates,  436.  In  New  York,  factors  may,  by  custom,  sell 
the  goods  of  their  principals  on  credit,  at  the  risk  of  the  latter.  Browne  v.  Robinson  <$- 
Hurlshorne,  2  C.  C.  E.  341.  The  general  powers,  duties  and  liabilities  of  factors  are  further 
considered  in  the  following  cases.  Goodenoio  v.  Tyler,  7  Mass.  Rep.  36.  Lawler\.Kea- 
quick,  I  J.  C.  174.  Loitard  v.  Graves,  3  Caines,  226.  Drummond  v.  Wood,  2  Caines,  310. 
Le  Guen  v.  Gouverneur  Sl  Kemble,  1  J.  C.  437.  note.  Urquart  v.  JWIver,  4  J.  R.  103.  Guy 
v.  Oakley,  13  J.  R.  332.  Odiorne  v.  Maxey,  13  Mass.  Rep.  179.  Wellman  v.  Nutting,  3 
Mass.  Rep.  431.     Sauches  v.  Davenport,  6  Mass.  Rep.  258. 


Chap.  8.]       dgent,  on  behalf  of  his  Principal.  536 

ity-teK176)  k  factor  cannot  legally  make  himself  the  purchaser  ;  nor  if  em- 
ployed to  purchase,  can  he  be  the  *seller,  unless  with  the  express  consent  of 
the  principal,  having  full  knowledge  of  all  the  attendant  circumstances^*) 

Brokers  are  noticed  in  the  stat.  1  Jac.  1.  c.  21.  s.  1.  "  as  persons  employed 
in  the  contriving,  making,  and  concluding  bargains  between  merchant  English, 
and  merchant  strangers,  and  tradesmen,  concerning   their  wares  and  merchan- 
dizes, to  be  bought  and  sold  and  contracted  for,  and  monies  to  be  taken  up  by 
exchange  between  such  merchant   and  merchants,  and  tradesmen."     And  sec. 
8.  of  the  same  statute  speaks   of  brokers  in  London  using  and  exercising    the 
ancient  trade    of  brokers  between  merchant  and  merchant.     And  by  the  stat. 
6  Ann.  c.  16.   persons    acting  as  brokers  in  London,    must  be  admitted  by  the 
court  of  the  Mayor  and  Alderman,  under   such  restrictions  and  limitations    for 
their  honest  and  good  behaviour,  as  they  shall  think  fit;  and  shall  pay  40s.  upon 
admission,  and  the  same  sum  annually,  under  a  penalty  of  25/.  for  acting  with- 
out.    And  in    1708,  one   year   after  the   passing    of  the  statute   of  Anne,  the 
Court  of  Mayor  and  Aldermen  of  the  city    of  London,    made  certain  rules  and 
regulations  for  the  government  of  brokers,  which  have  since  been  and  are  still 
in  force ;  and  by  virtue  of  which  every  person,   previous  to   his  being  admit- 
ted a  broker,  is  required  to   enter  into  a  bond  to  the  mayor,   commonalty,  and 
citizens  of  London,  in  a  penalty  of  500/.,  and  also  to  take  an  oath,  the  forms 
of  which  are  prescribed  by  the  same  rules  and  regulations.     The  condition  of 
the  bond,  amongst  other  things,  provides,  "  That   the  broker  shall  upon  every 
contract  by  him  made,  declare  and  make  known  to  such  person  or  persons  with 
whom  such  agreement  is  made,  the  name  or  names  of  his  principal  or  principals, 
either  buyer  or  seller,  if  thereunto   required  ;  and    that  he   shall    not    directly 
or  indirectly,  by  himself  or  any    other,  deal  for  himself  in  buying  any    goods, 
wares,  or  merchandizes,  to  barter  or  sell  again  upon  his  own  account,  or  for  his 
own  benefit  or  advantage,  or  make  any  gain   or  profit   in  buying  or  selling  any 
goods,  over  and  above  the  usual  brokerage." (i)   In  a  late  case,  where  the  condi- 
tion of  the  bond  was  brought  under  the  consideration  of  the  Court  of  Common 
Pleas,  (A;)  it  was  held,  that  if  a   broker  be  authorized  by   his  principal  to  make 
a  purchase   for   him  in   his    (the  broker's)  own  name,  and  the    contract    note 


\P  \f-  ^°rL  5}4-     lTCiXmPh-  ReP-  258-  oath  at  large  in  1  Merivale's  Rep.   156.  and 

(h)  Vide  Lowther  v.  Lowther,  13  Ves.  103.  Holt's  Ni.  Pri.  Cas    431 

Coles  x     Trecothick    9  Ves.  234.     Crave  v.  (A-)   Kemble  v.  Atkins,  7  Taunt.  Ren.   260. 

Ballard,  3  Bro.JDh.  Cas.  119.  1  Mo.  Rep.  6.  S.  C. 


(i)  See  the  Condition  of  the  Bond  and  the 


(176)    See  Leverick  v.  Meigs  $■  Reed,  1  Cowcn,   645.,  in  which  the  duties  and  liabilities  of 

PoUer  'fr-X*  ^arew' .  y  TT ^  ,? CG  aISJ°'  jBUm'",V-  PMmP>,  1  Gallis.  360.  Evans  v. 
Potter  2  Grallis  13.  Where  a  tactor  sells  goods  on  credit,  according  to  the  usual  course  of 
trade,  to  a  merchant  solvent  at  the  time,  if  he  have  no  orders  to  the  contrary,  he  will  not  he 
hable  in  case  of  insolvency.  James  v  JjP Credit,  1  Bay,  291.  Van  Men  v.  Vanderpool,  G 
J.  K.  69.  M'kmstry  v.  Pearsall,  3  J.  R.  319.  Herring  v.  J\Ia,-vin,  5  J  R393  «fLJfl. 
v.  Fink,  12  J   R.  218      MC^nco  v.  Curzen,  2  Call,  1353.     Hie  or,  having  LbStotS 

f^twn  ftl  S°ld  ^  del^Cred  ^em  to  a  person  in  good  credit/and  the^  next  day  sen 
m  the  bill,  but  the  purchaser  did  not  pay  it ;  held,  that  such  sale,  being  according  to  JsaS 
was  not  a  breach  of  orders.     Clark  v.  Mrlhwick,  1  Pick,  343.  b  accoraing  l0  USd£e> 

#537 


537     Of  Contracts  with  a  Factor,  Broker,  or    [Part  III. 

be  accordingly  made  out  in  the  broker's  name,  without  inserting  that  of  his 
principal,  such  a  purchase  by  the  broker  does  not  operate  as  a  breach  of  the 
condition  of  his  bond,  especially  where  the  broker  enters  the  name  of  his  prin- 
cipal as  being  the  buyer,  in  the  book  kept  by  him  for  that  purpose.  Neither 
does  the  condition  of  the  bond  absolutely  prohibit  a  broker  from  dealing  as  a 
trader  on  his  own  account,  but  it  only  operates  as  a  prohibition  sub  *modo,  that 
is,  it  imposes  upon  him  a  penalty  in  the  event  of  his  trading.  But  if,  in  any 
transaction  in  which  he  is  really  engaged  as  a  principal,  he  act  ostensibly  as 
a  broker,  such  conduct  is  a  gross  fraud,  in  respect  of  which  he  can  obtain  no 
remedy  in  a  court  of  justice.  (Z)  So,  if  a  broker  allow  a  third  person,  who 
has  not  been  duly  admitted  as  a  broker,  to  have  a  concurrent  and  equal  au- 
thority with  himself,  in  his  business  of  a  broker,  it  is  no  breach  of  that  part 
of  the  condition  of  the  bond  which  prohibits  his  employing  any  person  under 
him  to  act  as  a  broker,  (m) 

An  agent  is  one  employed  to  act  for  another  either  for  a  general  or  special 
purpose,  and  therefore,  in  its  enlarged  signification,  comprehends  a  factor 
and  broker,  though  the  latter  are  confined  to  mercantile  transactions  :  but  an 
agent  is  not  so  limited,  for  he  is  frequently  employed  to  transact  the  gen- 
eral business  not  only  of  merchants  and  traders,  but  of  others  ;  and  the  au- 
thority of  an  agent  is  created  either  by  deed,  by  simple  writing,  by  parol,  or  by 
mere  employment,  according  to  the  nature  of  the  business  to  be  transacted  ;(177) 
and  his  authority  is  either  general  or  special  with  reference  to  its  object,  i.  e. 
according  as  it  is  confined  to  a  single  act,  or  is  extended  to  all  acts  connected  with 
a  particular  employment.  A  general  authority  does  not  import  an  unqualified 
one,  but  that  which  was  derived  from  a  multitude  of  instances,  whereas  a  par- 
ticular authority  is  confined  to  an  individual  instance.  And  whether  the  author- 
ity is  general  or  not,  is  to  be  collected  from  the  general  dealing  between  the 
principal  and  agent,  and  not  merely  from  private  instructions,  (n)  If  an  agent 
is  entrusted  with  a  general  power,  he  must  exercise  a  sound  and  honest  judg- 
ment in  those  matters  which  are  left  to  his  discretion  ;  for  he  will  not  be  justi- 
fied in  taking  unreasonable  or  unusual  measures,  or  doing  any  thing  contrary 
to  the  interest  of  his  principal.  If,  however,  his  proceedings  are  challenged, 
the  principal  must  prove  that  he  might  have  done  better,  and  was  guilty  of  wil- 
ful mismanagement.  But  when  his  power  is  limited,  he  must  strictly  adhere 
to  his  orders,  which  should  always  be  given  in  writing.  (178)   If  he  exceeds  his 

(I)  Ex  parte  Dyster,  1  Merivale's  Rep.  155.  (n)  Per  Lord  Ellenborough  in  Whitehead  v. 

2  Rose  Rep.  349.  S.  C.  Tuckett,  15  East  Rep.  408.     And  see  Pick- 

(m)  Lord  Mayor  of  London  v.  Brandon,  2  eringv.  Busk,  15East,  38. 
Stark.  Rep.  14.  Holt's  JNi.Pri.  Cas.  438.  S.  C. 


(177)  See  Stackpole  v.  Arnold,  1 1  Mass.  Rep.  27.     Id.  97.     Id.  238. 

(178)  Letters  of  instruction  from  a  merchant  to  his  factor  and  consignee,  in  which  the 
price  of  the  goods  consigned  is  barely  stated,  and  expressing  a  hope,  from  the  excellent  qua- 
lity of  the  goods,  that  they  would  sell  readily;  and  that  the  sum  mentioned  would  be  realized, 
without  expressly  limiting  a  price  below  which  they  should  not  be  sold,  will  not  be  construed 
as  fixing  the  minimum  price  of  the  goods ;  and  a  sale  for  a  smaller  sum,  by  the  factor,  in 

*538 


Chap.  3.]  Agent,  on  Behalf  of  his  Principal.  538 

power,  though  with  a  view  to  his  employer's  interest,  he  will  be  liable  for  the 
consequences.  (179)  For  example,  if  he  gives  credit,  when  none  ought  to  be 
given,  or  longer  credit  than  directed,  for  the  sake  of  a  better  price  ;  and  the 
buyer  afterwards  becomes  insolvent,  he  shall  be  answerable  for  the  debt.(o) 

Although  opinion  will  never  justify  a  factor  in  acting  contrary  to  orders,  ne- 
cessity sometimes  will.  As,  if  he  be  limited  to  sell  goods  at  *a  fixed  price  ; 
and  the  goods  be  perishable,  and  not  in  a  condition  to  be  kept,  and  the  factor 
has  no  time  or  opportunity  for  consulting  with  the  principal,  it  is  apprehended 
he  may  sell  them  for  ready  money  under  the  price  limited,  in  order  to  prevent 
a  total  loss. (^)(180)  But  in  such  case  it  would  be  adviseable  to  call  in  two 
sworn  brokers,  or  other  competent  persons  to  examine  the  commodity. 

A  factor,  broker,  or  agent  cannot  delegate  his  power  to  another  without  an 
express  authority  from  his  principal  for  that  purpose,  (q)  And  in  the  execution 
of  the  power  given  to  a  factor  or  agent,  all  contracts,  and  other  acts  should  be 
expressed  to  be  made  and  done  by  him  in  the  name  and  on  the  account  of  his 
principal,  otherwise  the  principal  may  not  in  all  cases  be  bound  by  them,  and 
in  that  event  the  factor  or  agent  might  be  personally  liable,  (r)  And  a  factor 
or  agent  who  has  power  to  sell  the  goods  of  his  principal,  cannot  bind  or  affect 
the  property  of  them  by  tortiously  pledging,  or  otherwise  disposing  of  them,  ei- 


(o)  Vide  Mai.  Lex.  Mer.  81.  and  Sadockv.  (r)  Vide  9  Co.  76.  b.  1   Term  Rep.   181. 

Burton,  Yelv.  202.  6  Term  Rep.  176,  7.      Com.  Dig.  tit.  Attor- 

(p)  But  see  2  Mod.  100.  ney,  C.  14. 
(q)  Bunb.  166. 

good  faith,  and  without  negligence,  will  not  be  deemed  a  violation  of  the  instructions,  nor 
subject  the  factor  to  damages.     Vianna  v.  Barclay,  3  Cowen,  281. 

Where  the  plaintiffs,  merchants  in  Boston,  owners  of  a  ship  proceeding  on  freight  from 
Havana,  and  consigned  to  B.  &  Co.,  at  Leghorn,  and  to  return  to  Havana,  instructed  B.  &Co. 
to  invest  the  freight,  estimated  at  4600  petsos  ;  2200  in  marble  tiles,  and  the  residue,  after 
paying  disbursements,  in  wrapping  paper.  B.  &Co.  undertook  to  execute  these  orders: 
Instead,  however,  of  investing  2200  petsos  in  tiles,  they  invested  all  the  funds  which  came 
into  their  hands,  in  wrapping  paper ;  which  was  received  by  the  captain  of  the  ship,  and 
carried  to  Havana,  and  there  sold  on  account  of  the  plaintiffs,  and  resulted  in  a  loss  instead 
of  a  profit,  which  would  have  heen  realized  had  the  investment  been  made  in  marble  tiles. 
As  soon  as  the  plaintiffs  received  notice  of  the  breach  of  their  orders,  they  addressed  a  letter 
to  B.  &  Co.,  expressing,  in  strong  terms,  their  disapprobation  of  the  departure  from  their 
instructions  ;  but  did  not  signify  their  determination  to  disavow  the  transaction  entirely  : 
it  was  held,  that  the  plaintiffs  were  entitled  to  recover  damages  for  the  breach  of  their  or- 
ders ;  that  their  neglect  to  give  notice  to  B.  &  Co.,  that  the  paper  would  be  considered  as 
sold  on  their  own  account,  did  not  injure  their  claim;  and  that  the  amount  of  damages 
ought  to  be  determined  by  the  positive  and  direct  loss  arising  plainly  and  immediately  from 
the  breach  of  the  instructions.     Bell  v.  Cunningham,  3  Peters,  69. 

(179)  The  mere  act  of  a  principal  in  sending  his  factor  a  particular  commodity  for  sale, 
and  of  the  factor  in  sending  goods  to  the  principal,  will  not  authorize  the  factor  to  take  up 
goods  in  the  name  of  the  principal,  without  a  special  order  for  that  purpose.  Pnurie  <$•  Daw- 
son v.  Fraser,  2  Bay,  269.  So,  where  a  merchant  in  London,  consigned  goods  to  B.  of  Phila- 
delphia, to  be  delivered  to  C.  upon  payment  of  the  amount,  or  his  giving  such  security  as 
should  be  satisfactory  to  B.,  and  B.  delivered  the  goods  without  either  payment  or  security  ; 
it  was  held,  that  B.  was  liable  for  the  full  amount  of  the  original  debt,  with  a  reasonable 
compensation  for  the  delay  of  payment.     Walker  v.  Smith,  4  Dall.  389. 

(180)  A  deviation  from  instructions  may  be  justified  by  a  state  of  things  not  m  contem- 
plation at  the  time  when  the  orders  were  given.     Dutar  v.  Perit,  4  Binn.  361. 

*539 


539     Of  Contracts  ivith  a  Factor,  Broker,  or    [Part  III. 

ther  by  way  of  security  for,  or  in  satisfaction  of  his  own  debt.(.s)(181)  And 
where  goods  are  thus  pledged  or  disposed  of,  the  principal  may  recover  them 
back  by  action  of  trover  against  the  pawnee,  without  tendering  to  the  factor  or 
agent  what  may  be  due  to  him,  or  without  any  tender  to  the  pawnee  of  the 
sum  for  which  the  goods  are  pledged.  And  it  is  no  excuse  that  the  latter  was 
wholly  ignorant  that  the  former  held  the  goods  as  a  mere  factor  or  agent,  (t) 
But  a  factor  who  has  a  lien  on  the  goods  of  his  principal  may  deliver  them  over 
to  a  third  person  as  a  security  to  the  extent  of  his  lien,  with  notice  of  his  lien, 
and  may  appoint  such  third  person  as  his  servant  to  keep  possession  of  the 
goods  for  him.  (182)  And  in  that  case  the  principal  must  tender  the  amount 
of  the  lien  due  to  the  factor  before  he  can  be  entitled  to  recover  back  the  goods 
so  pledged,  (u) 

If  goods  are  consigned  to  a  factor  or  agent,  who  afterwards  becomes  bank- 
rupt, and  the  goods  remain  in  specie  in  his  hands  at  the  time  of  such  bankrupt- 
cy, the  principal  may  recover  them  from  the  assignees  by  action  of  trover :  or, 
if  the  factor  sells  the  goods,  and  his  assignees  afterwards  receive  the  money, 
the  principal  may  recover  it  from  them  in  an  action  of  assumpsit  for  money  had 
and  received,  (v)  So,  where  the  factor  sells  goods  and  takes  notes  in  payment 
from  the  vendee,  payable  at  a  future  day,  and  his  assignees  afterwards  receive 
the  *money,  the  principal  may  recover  it  from  them  in  the  same  form  of  ac- 
tion, (w)  So,  bills  remitted  to  a  factor  or  banker,  while  unpaid,  are  in  the  na- 
ture of  goods  unsold  ;  and  if  the  factor  become  bankrupt  they  must  be  returned 
to  the  principal,  subject  to  such  lien  as  the  factor  or  banker  may  have  there- 
on, (a;)  But  if  goods  be  consigned  to  a  factor  for  sale,  and  he  sell,  and  re- 
ceive the  money  for  them  before  his  bankruptcy,  and  do  not  purchase  with  the 
money  any  specific  thing  capable  of  being  distinguished  from  the  rest  of  his 
property,  the  principal  cannot  recover  the  whole  amount  from  the  assignees, 
but  must  come  in  under  the  commission,  (y)  So,  it  has  been  ruled  in  equity, 
that  if  one  employs  a  factor,  and  intrusts  him  with  the  disposal  of  merchandize, 
and  the  factor  receives  the  money,  and  dies  indebted  in  debts  of  a  higher  na- 
ture, and  it  appears  by  evidence  that  this  money  was  vested  in  other  goods,  and 
remains  unpaid,  those  goods  shall  be  taken  as  part  of  the  merchant's  estate, 
and  not  the  factor's  ;  but  if  the  factor  have  the  money,  it  shall  be  looked  upon 


(s)  Vide  the  cases  of  Patterson  v.    Tash,         («)  Vide  M'Combie  v.  Davies,  7  East  Rep. 

Stra.  1178.  Maansv.  Henderson,  1  East.  Rep.  7.     Per  Lord  Ellenborough  Ch.  J.     Pickering 

337.     Newsom  v.  Thornton,  6   East    Rep.  17.  v.  Busk,  15  East  Rep.  44. 
M'Conibie  v.    Davies,    lb.    538.      Martini  v.         (u)   Scott   v.  Surman,   Willes's  Rep.   400. 

Coles,   1  Maule  &  Sel.  146.  See  also  6  East  Rep.  26.  in  notis. 

(t)  M'Combie  v.  Davies,   7  East  Rep.  5.         (to)  Willes's  Rep.  400. 
See  also  Hartop  v.  Hoare,  Stra.  11S7.      Dan-         (x)  Zinck  v.  Walker,  2  Bl.  Rep.  1154.   See 

bigney  v.  Duval,  5  Term  Rep.  604.  also  Co.Bkpt.  Laws,  chap.  8.  s.  15. 

(y)  Scott  v.  Surman,  Willes's  Rep.  400. 


(181)  See  Stirnermaun\.  Cowing,  7  J.  Ch.  R.  275.  Bowie  v.  Napier,  1  M'Cord,  1.  Emm* 
v.  Potter,  2  Gallis.  13.  Skinner  v.  Dodge,  4  Hen.  &  Munf.  432.  Bulkley  v.  Packard,  20  J.  R. 
421.  Kinder  v.  Shaw,  2  Mass.  Rep.  398. 

(182)  Urquhart  v.  Mc  her,  4  J.  R.  103. 
*540 


Chap.  3.]       Agent,  oa  Behalf  of  his  Principal  540 

as  the  factor's  estate,  and  must  first  answer  the  debts  of  a  superior  creditor, 
&c.  for  as  money  has  no  ear-mark,  equity  cannot  follow  that  in  behalf  of  him 
who  employed  the  factor,  (z)  But  if  A.  employs  B.  as  his  factor  to  sell  cloth, 
and  B.  sells  the  cloth  on  credit,  and  before  the  money  is  paid,  B.  dies  indebted 
by  specialty  more  than  his  assets  will  pay  ;  this  money  shall  be  paid  to  A.  and 
not  to  the  administrator  of  B.  as  part  of  his  assets,  but  thereout  must  be  de- 
ducted what  was  due  to  B.  for  commission ;  for  a  factor  is  in  nature  only  of  a 
trustee  for  his  principal,  (a) 

Having  made  these  introductory  observations,  I  now   propose  to  consider  the 
general  subject  in  the  following  order,  viz. 


1.  OF  THE  AUTHORITY  GIVEN  TO  FACTORS,  BROKERS,  OR  AGENTS, 
TO  SELL  OR  OTHERWISE  DISPOSE  OF  THE  GOODS,  &c.  OF  THEIR 
PRINCIPALS  ;  AND  HOW  FAR  THE  LATTER  ARE  BOUND  BY  THEIR 
CONTRACTS,  MISREPRESENTATIONS,  OR  OTHER  ACTS  DONE  WITH- 
IN THE  GENERAL  SCOPE  OF  THEIR  EMPLOYxMENT  :  AND  OF  THE 
COUNTERMAND  OR  REVOCATION  OF  THEIR  AUTHORITY,  &c. 

2.  OF  SALES  ON  DEL  CREDERE  COMMISSION. 

3.  OF  SALES  BY  AUCTIONEERS. 

4.  OF  PAYMENT  TO,  OR  SETTLEMENT  WITH  A  FACTOR,  BROKER, 
♦OR  AGENT,  ON  ACCOUNT  OF  GOODS  SOLD  FOR  HIS  PRINCIPAL,  AND 
OF  THE  BUYER'S  RIGHT  TO  SET  OFF  DEBTS  DUE  TO  HIM  FROM 
THE  FACTOR,  &c. 

5.  IN  WHAT    CASES    THE   PRINCIPAL,  OR    HIS    FACTOR,  BROKER,  OR 
AGENT  MAY  SUE  OR  BE  SUED. 

6.  OF  THE   RIGHTS    AND    REMEDIES    BETWEEN    PRINCIPAL,    FACTOR, 
BROKER,  AND  AGENT,  LYTER  SE. 


1.  OF  THE  AUTHORITY  GIVEN  TO  FACTORS,  BROKERS,  OR  AGENTS 
TO  SELL  OR  OTHERWISE  DISPOSE  OF  THE  GOODS,  &c.  OF  THEIR 
PRINCIPALS  :  AND  HOW  FAR  THE  LATTER  ARE  BOUND  BY  THEIR 
CONTRACTS,  MISREPRESENTATIONS,  OR  OTHER  ACTS  DONE  WITH- 


(*)   Whitcomb  v.  Jacob,  1  Salk.  160.  (a)  Burdett  v.  Willett,  2  Vern.  638. 

*54l 


66 


541         Of  Contracts  ivith  a  Factor,  Broker,  or  [Part  HI. 

IN  THE  GENERAL  SCOPE   OF    THEIR   EMPLOYMENT :    AND    OF   THE 
COUNTERMAND  OR  REVOCATION  OF  THEIR  AUTHORITY,  &c. 

1.  Of  the  Authority  given  to  Factors,  Brokers,  or  Agents  to 
sell,  &c] — A  general  power  given  by  a  principal  to  a  factor,  broker,  or  agent 
to  buy  or  sell  his  goods,  binds  him  to  all  contracts  bona  fide  made  in  respect 
thereof.  Indeed  a  factor  is  one  who  has  a  general  power  to  buy  and  sell  accord- 
ing to  the  best  of  his  judgment,  and  therefore  all  bargains  which  third  persons 
make  with  him  without  fraud  or  collusion,  may  be  enforced  against  his  princi- 
pal ;  and  if  he  sell  for  a  less  price,  or  upon  different  terms  than  his  commis- 
sion directs,  his  sale  is  nevertheless  valid,  (b) 

But  if  a  broker  or  agent  be  employed  to  make  one  particular  purchase  of 
goods  of  a  certain  description  and  price,  the  principal  will  not  be  bound  by  his 
contract,  if  the  broker  depart  from  his  instructions  in  either  of  those  particu- 
lars ;(183)  but  in  the  case  of  a  factor  or  general  broker,  it  would  be  other- 
wise.^) It  is  necessary,  however,  with  regard  to  a  special  agent,  if  it  be  in- 
tended to  exclude  from  his  authority  any  circumstance  which  would  otherwise 
fall  within  it,  that  it  should  be  done  by  express  directions.  For,  though  it  has 
been  decided,  that  a  special  agent  employed  to  negotiate  a  bill  of  exchange, 
and  expressly  directed  not  to  indorse  it  for  his  principals,  could  not  bind  them 
by  *doing  so.  (d)  Yet  when  the  fact  appeared  to  be,  that  the  agent  was  mere- 
ly commissioned  by  the  defendants  to  get  the  bill  negotiated,  and  no  express  di- 
rection given  him  not  to  indorse  it,  it  was  resolved,  that  the  defendants  having 
commissioned  the  agent  to  get  the  bill  discounted,  without  restraining  his  au- 
thority as  to  the  mode  of  doing  it,  were  bound  by  his  acts  :  and,  therefore, 
that  he  having  warranted  the  bill  to  be  a  good  one,  this  constituted  a  good  con- 
sideration for  their  subsequent  promise  to  pay  it.  (e)  And  this  distinction  has 
been  taken  upon  the  sale  of  a  horse,  namely,  that  where  a  person  keeping 
livery  stables,  entrusts  his  servant  with  a  horse  to  sell,  and  direct  him  not  to 
warrant,  and  the  servant  do  nevertheless  warrant  him,  still  the  master  will  be 
liable  on  the  warranty,  because  his  servant  is  acting  within  the  general  scope 
of  his  authority,  and  the  public  cannot  be  supposed  cognizant  of  any  private 
conversation  between  the  master  and  the  servant  :  but  if  the  owner  of  a  horse 
send  a  stranger  to  a  fair  with  express  directions  not  to  warrant  the  horse,  and 
the  latter  act  contrary  to  the  orders,  the  purchaser  can  only  have  recourse  to 


(b)  Ambl.  498.  {d)  Fenn  v.  Harrison,  3  Term  Rep.  757. 

(c)  East  India  Company  v.  Henley,  1  Esp.         (c)  Ibid.  4  Term  Rep.  177. 
Rep.  111. 


(183)  Where  a  merchant  appoints  an  agent  for  a  particular  purpose,  as  to  purchase  a 
cargo,  and  authorizes  him  to  draw  bills  for  the  amount,  and  the  agent  draws  bills  for  anoth- 
er purpose,  on  his  own  account,  the  principal  is  not  bound  to  accept  or  pay  such  bills. 
Tuano  v.  Sakeley,2  Bay,  505.     See  Parsons  v.  Armor  fy  Oakley,  3  Peters,  413. 

*542 


Chap.  3.]      Agent,  on  Behalf  of  his  Principal  542 

the  person  who  actually  sold  the  horse,  and  the  owner  is  not  liable  on  the  war- 
ranty^/) 

In  the  absence  of  particular  instructions,  however,  a  general  power  to  sell, 
implies  a  power  to  sell  in  the  usual  way  ;  and  therefore  the  right  of  an  agent 
to  sell  upon  credit,  depends  entirely  upon  the  fact  of  that  being  the  usual  mode 
of  dealing  in  the  particular  trade  in  question.  If  there  be  no  such  usage,  no 
contract  is  created  between  the  principal  and  vendee,  and  such  sale  is  a  conver- 
sion in  the  factor  ;  and  if  not  in  market  overt,  no  property  is  thereby  altered, 
but  trover  will  lie  against  the  vendee,  (/t) 

So,  in  the  case  of  Wiltshire  v.  Sims,(i)  where  on  the  transfer  of  stock, 
which  is  usually  sold  for  ready  money,  it  was  held,  that  a  sale  of  stock  for  a 
bill  at  14  days  could  not  be  enforced,  the  transaction  being  conducted  by  a 
stock  broker  to  whom  a  general  authority  was  given  to  sell.  And  upon  that 
occasion  Lord  Ellenborough  Ch.  J.  said,  "  When  the  defendant  employed  the 
broker  to  sell  the  stock,  he  employed  him  to  sell  it  in  the  usual  manner.  He 
made  him  his  agent  for  common  purposes  in  a  transaction  of  this  sort.  But 
did  any  one  ever  hear  of  stock  being  absolutely  exchanged  for  a  bill  at  fourteen 
days  1  Has  a  broker  in  common  cases  power  to  give  credit  for  the  price  of 
stock  which  he  agrees  to  sell  ?  The  broker  here  sold  the  stock  in  an  unusual 
manner  ;  and  unless  he  was  expressly  authorised  to  do  so,  his  principal  is  not 
bound  by  his  acts." 

So,  if  there  be  no  usage  to  give  credit,  and  a  factor  on  a  general  *authority 
to  sell,  sell  upon  credit,  the  factor  alone  will  be  liable  to  the  vendee  ;  and 
unless  such  sale  be  in  market  overt,  the  property  in  the  goods  is  not  changed, 
nor  even  in  market  overt,  if  the  vendee  know  that  the  vendor  sells  as  factor,  (k) 
And  it  is  said,(Z)  that  a  court  of  equity  will  compel  the  vendee  under  these 
circumstances  to  render  an  account  of  what  he  holds. 

A  broker  who  does  not  disclose  his  principal  may  vary  the  terms  of  payment 
after  the  sale  is  completed  ;  but  when  the  principal  is  disclosed,  the  broker  is 
no  longer  authorised  to  alter  the  terms  of  the  contract.(m) 

It  is,  however,  necessary  to  the  general  interest  of  the  mercantile  world, 
that  the  principal  should  in  some  cases  be  bound  by  the  sale  of  a  special  agent, 
though  he  does  so  contrary  to  his  directions  ;  as  for  instance,  where  goods 
are  sent  in  such  a  way  and  to  such  a  place  as  to  exhibit  an  apparent  purpose 
of  sale.  And  accordingly  in  the  case  of  Pickering  v.  Busk,(n)  which  was 
an  action  of  trover  for  hemp :  and  at  the  trial  before  Lord  Ellenborough  Ch. 
J.  it  appeared,  that  Swallow,  a  broker  in  London,  engaged  in  the  hemp  trade, 
had  purchased  for  the  plaintiff,  a  merchant  at  Hull,  a  parcel  of  hemp  then 
lying  at  SymonoVs   Wharf  m  Southwark.       The  hemp  was  delivered  to  SwaU 


(/)  Per  Ashurst,  Just.  4  Term  Rep.  177.,         (0  3  Ves.  226. 
and  see  1  Dow.  Rep.  44,  45.  (»«)  Blackburn  v.   Scho'es,  2  Campb.  Rep. 

(h)  Per  Holt  Ch.  J.  12  Mod.  514.  313. 

(i)  1  Campb.  258.  (n)   15  East  Rep.  38. 

(fc)  12  Mod.  515.    Ante,  530. 

*54l 


543      Of  Contracts  ivith  a  Factor,  Broker,  or  [Part   III. 

low,  at  the  desire  of  the  plaintiff,  by  a  transfer  in  the  books  of  the  wharfin- 
ger from  the  name  of  the  seller  to  that  of  Swallow:  Shortly  afterwards,  Swallow 
purchased  for  the  plaintiff  another  parcel  of  hemp,  lying  at  Browns  quay,  Wap- 
ping ;  which  latter  parcel  was  transferred    into  the  names    of  Pickering,   (the 
plaintiff,)  or  Swallow.     Both  these  parcels  of  hemp  were  duly  paid  for  by  the 
plaintiff.     Swallow,  however,  whilst  the    hemp   remained    thus    in  his   name, 
having  contracted  with  Hayward  and  Co.,  as  the  broker  of  Blackburn  and    Co. 
for  the  sale  of  hemp,  and  having  none  of  his  own    to  deliver,    transferred    into 
the  names  of  Hayward  and  Co.,  the  above  parcels  in  satisfaction    of  that  con- 
tract,   for  which  they  paid  him  the  value.     Hayward  and  Co.   shortly  after  be- 
came bankrupts  ;  and  the  plaintiff  discovering  these  circumstances,  demanded 
the  hemp  of  the  defendants,  their  assignees,  and  upon  their   refusal   to   deliver 
it,  the    present    action  was  brought.     His  lordship  was  of  opinion    upon  this 
evidence,  that  the  transfer  of  the  hemp,  by  direction  of  the  plaintiff,  into  Swal- 
low's name,  authorised  him  to  deal  with  it  as  owner,  with  respect    to  third  per- 
sons ;  and  that  the  plaintiff,  who  had  thus  enabled  him  to  assume  the  appearance 
of  ownership  to  the  world,  must    abide  the  consequence  of  his    own    act.     A 
verdict   was  therefore  found   for  the  defendants  ;  and  upon  a  rule    nisi  to    set 
aside  the  verdict,  the  Court  determined  that  the  verdict  was    right.     And  Lord 
Ellenborovgh  Ch.  J.  said,   "  It  *cannot  fairly  be  questioned  in  this  case  but 
that  SiL-allow  had  an  implied   authority  to    sell.     Strangers    can    only  look  to 
the  acts  of  the  parties,  and  to  the  external  indicia  of  property,  and  not   to    the 
private   communications  which  may  pass  between  a  principal  and  his  broker : 
and  if  a  person  authorize  another  to  assume  the    apparent  right  of  disposing 
of  property  in  the  ordinary  course  of  trade,  it  must  be  presumed  that   the  appa- 
rent  authority  is  the  real  authority.     I  cannot  subscribe  to  the   doctrine  that   a 
broker's   engagements    are  necessarily    and  in    all    cases   limited    to   his   ac- 
tual authority,  the  reality  of  which  is  afterwards  to  be  tried   by  the    fact.     It  is 
clear,  that  he  may  bind    his  principal  within  the    limits  of  the    authority  with 
which  he  has  been  apparently  clothed  by  the  principal  in    respect   of  the  sub- 
ject-matter ;  and  there  would  be  no  safety  in  mercantile  transactions  if  he  could 
not.     If  the  principal  send  his  commodity  to  a  place,   wnere  it   is  the    ordinary 
business    of  the   person  to  whom   it  is   confided   to   sell,  it  must  be  intended 
that   the    commodity     w^as    sent     thither  for    the    purpose    of  sale.       If  the 
owner  of  a  horse   send  it  to  a  repository   of  sale,   can    it  be  implied  that  he 
sent  it  thither  for  any  other  purpose  than  that  of  sale  ?  Or  if  one  send  goods 
to  an  auction-room,   can   it  be  supposed   that  he  sent  them   thither  merely   for 
safe  custody  ?  "Where  the  commodity  is  sent  in  such    a  way,  and  to  such  a  place 
as  to  exhibit  an  apparent  purpose  of  sale,  the  principal  will  be  bound  and  the 
purchaser  safe.     The  case  of  a  factor  not  being   able  to  pledge   the  goods  of 
his  principal  confided  to  him  for  sale,  though  clothed  with  an  apparent  owner- 
ship, has  been  pressed  upon  us  in  the  argument,  and  considerably  distressed 
our  decision.     The  Court,  however,   will  decide   that  question   when  it  arises, 
consistentlv  with  the  principle    on  which  the  present  decision  is  founded.     It 
*544 


Chap.  3-]         Jlgenl,  on  Behalf  of  his  Principal.  544 

was  a  hard  doctrine  when  the  pawnee  was  told  that  the  pledger  of  the  goods 
had  no  authority  to  pledge  them,  being  a  mere  factor  for  sale ;  and  yet 
since  the  case  of  Paterson  v.  Tash,(o)  that  doctrine  has  never  been  overturned. 

So,  where  a  factor  has  an  absolute  power  to  sell  goods  consigned  to  him 
from  abroad,  an  indorsement  of  a  bill  of  lading  by  him  while  the  ship  is  at  sea, 
provided  it  be  by  way  of  sale,  and  not  of  pledge,  passes  the  property,  and  di- 
vests the  principal's  right  to  stop  in  transitu. (p) 

But  the  authority  of  a  factor  to  sell  the  goods  of  his  principal,  does  not 
authorize  him  to  barter  them  for  other  goods  ;  and  if  he,  in  point  of  fact,  bar- 
ter the  goods,  and  deliver  them,  and  receive  other  goods  in  exchange,  no  prop- 
erty passes  by  the  delivery,  and  the  owner  of  the  goods  may  maintain  an  ac- 
tion of  trover  for  them  against  the  person  to  whom  they  are  bartered  and  deliver- 
ed, though  he  did  not  know  that  he  had  *been  dealing  with  a  person  who  was  mere- 
ly a  factor.  But  it  seems  that  if  it  had  been  a  sale  in  market  overt  it  would 
have  bound  the  seller,  (q) 

So,  an  agent  c  annot  delegate  his  authority  to  another,  so  as  to  bind  the  prin- 
cipal by  the  acts  of  the  sub- agent ;  but  if  an  express  authority  be  given  to  em- 
ploy a  sub-agent,  or  where  the  usual  course  of  management  of  the  principal's 
concerns,  in  the  employment  of  a  sub-agent,  is  pursued  for  a  length  of  time, 
and  recognised  by  the  owners  of  property,  they  will  be  taken  to  have  adopted 
the  acts  of  the  sub-agent  as  the  acts  of  the  agent  himself,  and  will  be  lia- 
ble.(r)(184) 

2.  A  Principal  is  liable  for  the  Deceit  of  his  Factor  in  the  Sale 
of  Goods,  and  also  for  the  Misapplication  of  Money  by  his  Agent.] 
— Thus,  in  the  case  of  Hern  v.  Nichols, (s)  which  was  an  action  on  the  case 
for  a   deceit,  the  plaintiff  set  forth,   that  be  bought   several  parcels    of  silk  for 

silk,  whereas  it  was  another  kind  of  silk  ;  and  that  the  defendant,  well 

knowing  this  deceit,  sold  it    to  him  for silk.     On  the  trial,  it  appeared 

that  there  was  no  actual  deceit  in  the  defendant,  who  was  the  merchant,  but 
that  it  was  in  his  factor  beyond  sea :  and  the  doubt  was,  if  this  deceit  could 
charge  the  merchant.  Holt  Ch.  J.  was  of  opinion,  that  the  merchant  was  an- 
swerable for  the  deceit  of  his  factor,  though  not  criminaliler  yet  civiliter ; 
for  seeing  somebody  must  be  a  loser  by  this  deceit,  it  is  more  reasonable 
that  he  who  employs  and  puts  a  trust  and  confidence  in  the  deceiver  should  bo 
a  loser  than  a  stranger  :   and  upon  this  opinion  the  plaintiff  had  a  verdict.  (185) 

(o)  2  Stra.  1178.  ct  vide  Daubigny  v.  Du-  (q)  Guerreirov.  Pcilf,  3  Barn.  &  Ak\.  616. 
vol,  5  Term  Rep.  604.  (,•)  2  Campb.    Rep.   218.    597.     And  see 

(/))  4  Burr.  Rep.  2051.  6  East,  41.  Peake's     Bunb.  Rep.  166. 
Cas.  N.  P.  190.  &  9  East  Rep.  516.  (*•)  1  Salk.  289.  Holt.  462.  S.  C.  Sec  also 

1  Term  Rep.  12. 


(184)  See  Emerson  v.  Providence  Hat  Manufacturing  Co.  12  Mass.  Rep.  237.  When  a  con- 
signee acts  within  the  scope  of  his  authority,  and  employs  a  sub-agent  to  carry  that  au- 
thority into  execution,  as  by  selling  jjoods  consigned  to  him,  or  doing°anv  other  act  within 
that  authority,  the  sub-agent  has  a  lien  upon  the  goods  on  account  of  which  he  may  have 
made  advances  for  the  purposes  of  a  sale.     Bowie  v.  Napier,    1  M'Cord    1. 

(185)  The  doctrine  that  a  principal  is  liable  for  the  fraud  of  his  agent  or  factor,  doe« 

*545 


545       Of  Contracts  with  a  Factor,  Broker,  or     [Part  III. 

So,  where  money  is  paid  to  an  agent  or  servant,  and  he  missapplies  it,  the  prin- 
cipal or  agent  is  liable,  (t) 

3.  Of  the  Countermand  or  Revocation  of  the  Authority  of  a  Fac- 
tor, Broker,  or  Agent.] — The  authority  of  a  broker  or  agent  may,  in  general, 
be  countermanded  by  the  principal  at  any  time  before  the  contract  has  been 
completed,  if  the  party  contracted  with  has  not  been  already  put  in  a  worse 
situation  ;  though  where  the  agent's  power  is  coupled  with  an  interest,  it  cannot 
be  determined  without  his  consent,  unless  by  the  principal's  death  or  bankrupt- 
cy.^) The  authority  of  a  broker  may  be  countermanded  at  any  time  before 
the  memorandum  of  the  contract  of  the  sale  is  written  and  signed  by  him, 
pursuant  to  the  statute  of  frauds,  although  he  had  previously  entered  into  a 
verbal  agreement  to  sell  the  goods,  (f)  But  where  a  broker  is  authorized  by 
one  man  to  sell  goods,  and  by  another  to  buy  the  same,  an  entry  in  his  books 
of  a  sale  of  these  goods,  from  the  one  to  the  other,  signed  by  him,  is  a  binding 
contract  between  the  parties  ;  the  bought-and-sold  note  *which  is  a  copy 
of  this  entry,  is  sent  to  the  parties,  not  for  their  approval,  but  to  inform  them 
of  the  terms  of  the  contract,  (v)  The  agent's  power  is  ipso  facto  determined 
by  the  bankruptcy  or  death  of  the  principal,  (w)  And  in  general  the  authori- 
ty of  an  agent,  for  the  purpose  of  sale,  is  at  an  end  by  the  sale  ;  and  therefore 
an  auctioneer  after  the  sale,  has  no  authority  to  treat  of  the  terms  upon  which 
a  title  is  to  be  made,  (a) (186) 

2.  OF  SALES,  &c.  ON  A  DEL  CREDERE  COMMISSION. 

Del  credere  is  said  to  be  an  Italian  mercantile  phrase,  and  signifies  a  par- 
ticular kind  of  credit  or  responsibility,  and  when  applied  to  the  situation  of 
a  factor,  it  is  understood  in  the  following  sense  :  a  factor  who  has  general  or- 
ders to  dispose  of  goods  for  his  principal,  and,  in  consideration  of  being  paid 
an  additional  commission, (y)  acts  in  nature  of  an  insurer  to  him,  by  guaran- 
teeing the  solvency  of  the  vendee,  and  thereby  undertaking  to  pay  the  money  if 
the  vendee  does  not ;  on  failure  therefore  of  the  vendee,  the  factor  is  to  stand 
in   his  place,    and  to  make    his  default   good :   and  in  an  action    upon   such  a 

(t)   Cary  v.  Webster,  1  Stra.  4S0.  (x)   Seaton  v.  Slade,  7  Ves.  276. 
(it)  Watson  v.  King,  4  Campb.  Rep.  272.  (i/)  Vide  6  Bro.  P.  C.  287.  oct.  ed.     The 
5  Esp.  Rep.   158.     2  Stark.  Rep.  51.  del  credere  commission  is  usually  1  1-2  or  2 
(I)   Farmer  v.   Robinson,  2  Campb.    339.  n.  per  cent,  in  addition  to  the  customary  corn- 
er) Hayman  v.  Neale,  2  Campb.  337.  mission  for  selling,  &c. 
(to)  4  Campb.  Rep.  272. 

not  apply  to  special  agents,  but  to   such  only  as  are  vested  with  a  general  authority. 
Sherwood  v.  Marwick,  5  Greenl.  295. 

(1S6)  It  has  been  decided,  that  an  agent  who  has  received  money  on  account  of  his  prin- 
cipal, with  directions  to  pay  it  over  to  a  third  person,  may  be  compelled  to  pay  it  to  the 
principal,  at  any  time  before  the  authority  is  executed.  Doio  v.  Prescott,  12  Mass.  Rep. 
419.  See  further,  Kinder  v.  Shaic,  2  Mass.  Rep.  398.  So,  in  general,  all  persons  who  act 
by  authority  derived  from  others,  may  proceed  in  the  execution  of  such  authority,  until 
notice  be  given  of  a  revocation  ;  and  their  acts  performed  between  the  time  of  the  revo- 
cation, and  the  time  of  such  notice,  will  be  binding  on  the  principal.  Boxoerbank  v. 
iyf  onis,  Wallace,  126. 
#546 


Chap.  3.]       Agent,  on  behalf  of  Ms  Principal.  546 

guarantee,  the  declaration  must  set  forth  the  matter  specially,  (z)     The  guar- 
antee must  also  be  in  writing  to  satisfy  the  statute  of  frauds,  (a)  (187) 

In  the  case  of  Mackenzie  and  another  v.  Scott, (b)  where  a  factor,  under 
a  commission  del  credere,  sold  goods  and  took  accepted  bills  from  the  purchasers, 
which  he  indorsed  to  a  banker  at  the  place  of  sale,  and  received  the  banker's 
bill,  (payable  to  the  factor's  order)  on  a  house  in  London.  This  last  bill 
the  factor  indorsed  and  transmitted  to  his  principal,  who  got  the  same  accept- 
ed ;  but  the  acceptor  and  drawer  afterwards  failed.  It  was  held,  that  the  factor 
was  answerable  for  the  amount  of  the  bill ;  being  personally  liable,  under 
his  commission  del  credere,   to  satisfy  his  principal  the  price  of  the  goods  sold. 

3.  OF  SALES  BY  AUCTIONEERS. 

An  auctioneer  is  considered  as  an  agent  for  the  buyer  and  the  seller.(c)(188) 
And  an  auctioneer,  employed  to  sell  the  goods  of  a  third  person  by  auction,  has 
such  a  special  property  in  them  that  he  may  maintain  an  action  in  his  own  name 
for  goods  sold  and  delivered,  against  a  buyer,  even  though  the  sale  be  at  the 
house  of  such  third  person,  and  the  goods  known  to  be  that  person's  proper- 
ty, (d)  He  is  also  in  the  *nature  of  a  stakeholder  and  liable  to  be  sued  for  the 
recovery  of  the  deposit  money,  where  a  valid  title  cannot  be  made  to  the  purcha- 
ser, (e)  So,  where  an  auctioneer  does  not  disclose  the  name  of  his  principal  at 
the  time  of  the  sale,  and  the  contract  is  not  completed,  he  is  personally  liable  to 
an  action  for  damages  and  expences. 

If  an  auctioneer,  whilst  selling  household  fixtures,  has  notice  that  they  do  not 
belong  to  his  principal,  but  he,  notwithstanding  proceeds  to  sell  them,  he  is 
personally  liable  to  the  real  owner,  in  an  action  of  assumpsit  for  the  proceeds 
of  the  sale,  or  to  an  action  of  trover,  (f) 

An  action  does  not  lie  against  an  auctioneer,  at  the  suit  of  his  employ- 
er, for  selling  goods  at  the  highest  price  bid  for  them,  under  the  usual  con- 
ditions of  sale,  though  he  might  have  had  the  owner's  express  directions  not  to 
let  them  go  under  a  larger  sum  named.  He  would,  however,  be  liable,  if  the 
owner  had  directed  him  to  set  the  goods  up  at  a  particular  price,  and  not  low- 
er.(g)(l89) 


(z)  See  4  Maule  &  Sel.  574.  and  1   Mo.          (d)   Williams   v.  Millingtcn,    1  H.  Bl.  81. 

Rep.  279.  (e)  Burrough    v.   Skinner,   5  Burr.    2639. 

(a)  Ante,  190.  (/)  Hardacre  v.  Stewart,  5  Esp.  Rep.  103. 

(6)  GBro.P.  C.  280.  oct.  ed.  (g)  Bexwellv.    Christie,  Cowp.  395. 
(c)  Ante  99. 

(187)  See  Leverick  v.  Meigs,  1  Covven,  645,  wherein  the  nature  and  effect  of  a  com- 
mission del  credere  are  considered.  The  guaranty  of  a  sale  under  a  commission  del  credere, 
does  not  imply  a  guaranty  of  the  remittance.     Id. 

(188)  See  Meadows  v.  Meadows,  3  M'Cord,  458. 

(189)  The  defendant,  as  auctioneer,  received  certain  goods  for  sale,  with  instructions  to 
sell  them  on  a  credit  of  six  months,  and  to  take  security  from  the  purchasers,  severally  for 
the  amount  of  their  purchases  :  The  auctioneer  sold  the  goods,  and  took  bonds  with  secu- 
rity for  a  part,  and  delivered  to  the  purchasers  the  residue  without  security;  held,  that 
the  defendant  was  liable  in  damages  for  the  violation  of  his  instructions.  Wilkinson  v. 
Campbell,  1  Bay,  166. 


* 


547 


547     Of  Contracts  with  a  Factor,  Broker,  or    [Part  III. 

An  auctioneer,  having  sold  an  estate,  received  a  deposit  of  the  purchaser  ; 
but  the  title  being  discovered  to  be  defective,  an  action  was  brought  against 
him  to  recover  back  the  amount  of  the  deposit,  which  he  accordingly  paid,  to- 
gether with  the  costs  of  the  action  :  it  was  ruled,  (/)  that  the  auctioneer  could 
not  recover  the  amount  of  the  costs  against  his  principal  in  an  action  of  inde- 
bitatus assumpsit,  for  money  paid,  but  should  have  declared  specially. 

So,  where  an  auctioneer  was  employed  to  sell  an  estate,  the  lowest  price 
of  which  was  fixed  by  the  owner,  and  written  down  by  him  on  a  piece  of 
paper,  which  was  put  under  a  candlestick  at  the  time  of  sale,  with  the  privity 
of  the  auctioneer,  but  not  signed  by  the  owner,  nor  any  notice  in  writing 
given  to  the  auctioneer  of  the  price  so  set  down,  nor  had  the  auctioneer  giv- 
en the  previous  notice  of  the  sale  to  the  collector  of  the  duty,  as  required 
by  the  acts  of  the  19  Geo.  III.  c.  56.  and  28  Geo.  III.  c.  37.  :  but  being  ask- 
ed at  the  sale  whether  he  had  taken  the  proper  precautions  to  avoid  the  duty 
in  case  there  were  no  sale,  he  said,  that  it  was  his  mode  to  fix  a  price  under 
the  candlestick,  and  if  the  bidding  did  not  come  up  to  that  price,  it  was 
no  sale  or  duty  :  in  point  of  fact  there  was  no  sale.  The  duty,  however, 
did  attach,  in  consequence  of  the  auctioneer  not  having  taken  the  precau- 
tions required  of  the  owner,  by  the  statutes  under  such  circumstances  ;  and 
the  auctioneer  was  sued  for  the  duty  on  his  bond  to  the  crown,  and  com- 
pelled to  pay  it :  the  Court  of  King's  Bench  decided  that  the  auctioneer 
could  not  recover  it  over  against  the  owners,  he  having  warranted  that 
proper  precautions  had  been  taken  to  *prevent  the  duty  attaching  in  the  event, 
though  both  parties  were  mistaken  in  the  law.  (g) 

So,  if  the  sale  of  an  estate  by  auction  become  nugatory  by  the  negligence 
of  the  auctioneer  who  is  employed  to  sell  it,  he  will  not  be  entitled  to  any  re- 
compence  for  his  services  from  the  vendor.  (A) 

So,  if  he  sell  goods  and  deliver  them  without  notice  of  any  lien  or  claim 
which  he  has  on  the  owner,  and  the  buyer,  without  such  notice,  settle  for  the 
goods  with  the  owner,  the  auctioneer  cannot  sue  the  buyer  for  the  price  of  the 
goods.  And  if  the  auctioneer  sell  the  goods  of  B.  as  the  goods  of  A.,  and  the 
buyer  pay  the  price  to  A.,  the  auctioneer  cannot  recover  the  price  from  the 
buyer,  (i)  If  no  payment  be  made  by  the  buyer  in  such  case,  and  the  auc- 
tioneer bring  an  action  against  him  for  the  price  of  the  goods,  the  buyer  may 
set  oft'  a  debt  due  from  A.  to  him.  (k)  The  clerks  of  auctioneers  are  not  au- 
thorised to  act  in  the  absence  of  their  masters,  as  agents  for  the  employers  of 
the  auctioneers,  unless  the  employers  empower  them  so  to  do.  (/) 


(/)  Spurrier  v.  Elderton,  5  Esp.  Rep.  1. 
(g)  Capp  v.  Topham,  6  East  Rep.  392. 
(/i)  Denew  v.  Daverell,  3  Campb.  Rep.  451. 
(i)   Coppin  v.  Walker,  7  Taunt.  237. 
*548 


(fc)   Coppin  v.  Craig,  Ibid.  243. 

(I)  Coles  v.  Trecothick,  9  Ves.  243.  251. 
For  more  concerning  auctioneer,  and  sales 
by  auction,  vide  ante,  132. 


Chap.  3.]  Jgenl,  on  Behalf  of  his  Principal.  548 

4.  OF  PAYMENT  TO,  OR  SETTLEMENT  WITH  A  FACTOR,  BROKER,  OR 
AGENT,    ON  ACCOUNT  OF   GOODS    SOLD   FOR  HIS  PRINCIPAL  :  AND 
OF  THE  BUYER'S  RIGHT  TO  SET  OFF  DEBTS  DUE  TO  HIM  FROM  THE 
FACTOR,  &c. 

1.  Of  Payment  to,  or  Settlement  with  a  Factor,  Broker,  or  Agent.] 
— Where  a  factor  sells  the  goods  of  his  principal  in  his  own  name,  and  makes 
the  buyer  debtor  to  himself,  he  has  a  right  to  receive  the  price,  and  he  may- 
support  an  action  for  it  against  the  buyer ;  and  it  will  be  no  defence  to  such 
action  for  the  buyer  to  say,  that  the  principal  is  indebted  to  him  in  more  mo- 
ney, except  in  cases  where  nothing  is  due  from  the  principal  to  the  factor  :  and 
where  a  factor  who  had  become  surety  for  his  principal,  for  money  borrowed  by 
him,  upon  an  engagement  by  the  principal  to  send  the  factor  all  the  goods  he 
should  make  of  the  money  borrowed,  sold  goods  in  his  own  name,  but  the 
goods  were  marked  with  the  name  of  the  principal,  and  the  purchaser  knew 
that  the  seller  sold  the  goods  as  factor  ;  and  after  an  act  of  bankruptcy  com- 
mitted by  the  principal,  and  notice  by  his  assignees  to  the  purchaser  not 
to  pay  the  price  of  the  goods  to  the  factor,  the  parcliaser  did  nevertheless 
pay  it  to  the  factor :  the  Court  of  King's  Bench  held  him  warranted  in  so  do- 
ing, (m) 

#But  though  in  ordinary  cases,  the  factor  sell  goods  without  disclosing  his 
principal,  yet,  if  the  principal  give  notice  to  the  buyer  to  pay  to  him,  and  not  to 
the  factor,  the  buyer  will  not  be  justified  in  afterwards  paying  the  factor,  if 
nothing  be  then  due  to  him  from  his  principal. (n)  But  where  the  owner  of 
goods,  being  indebted  to  a  factor  in  an  amount  exceeding  their  value,  consigned 
them  to  him  for  sale  ;  the  factor  being  also  similarly  indebted  to  I.  S.,  sold 
the  goods  to  him  ;  the  factor  afterwards  became  bankrupt ;  and  on  a  settle- 
ment of  accounts  between  I.  S.  and  the  assignees,  I.  S.  allowed  credit  to 
them  for  the  price  of  the  goods,  and  he  then  proved  the  residue  of  his  claim 
against  the  estate  :  it  was  determined,  that  as  the  factor  had  a  lien  on  the 
whole  price  of  the  goods,  such  settlement  of  accounts  between  the  vendee  and 
the  assignees  afforded  a  good  answer  to  an  action  against  the  vendee  for  the  price 
of  the  goods,  brought  either  by  or  on  the  account  of  the  original  owner.(o) 

So,  if  the  owner  of  goods  allow  his  broker  to  sell  them  as  a  principal,  the 
purchaser  will  be  discharged  by  paying  the  price  of  the  goods  to  the  broker.(/>) 
And  if  on  some  occasions  the  principals  allow  their  brokers  to  draw  bills  in 
their  own  name  for  goods  which  they  have  sold  on  their  account,  they  are 
bound  by  a  payment  made  to  the  brokers  by  a  purchaser,  (q)  And  upon  a  sals 
of  goods  by  a  broker,  for  a  principal  not  named,  upon  the  terms  of — "  payment 


(m)  Drinkwater  v.   Goodwin,    Cowp.    251.  (o)  Hudson  v.  Granger,  5  Barn.  &  Aid.  27. 

See  also,   Coppin  v.  Walker,  7  Taunt.  Rep.  (p)  Coates  v.  Lewes,  1  Campb.  444. 

237.  2  Mar.  Rep.  497.  (q)  Toicnsend  v.  Inglis,  ^Halt  N.  P.  Cas. 

(»)  Bull.  Ni.Pri.  130.  278. 

67  *549 


549     Of  Co?ilracts  with  a  Factor,  Broker,  or    [Part  III. 

in  one  month,  money ;"  which  terms  are  specified  in  the  bought  and  sold  notes 
handed  over  to  the  respective  parties  by  the  broker  ;  a  payment  made  to  the 
broker  within  the  month,  by  a  bill  of  exchange,  accepted  by  the  buyer,  and  dis- 
counted by  him  within  the   month,  is   good;  but  the  buyer  being  also  indebted 
to  the  same  broker  for  another  parcel  of  goods  belonging  to  other  persons,  and 
accepting  the  bill   for  a  larger  sum  than   either  of  the   parcels  of  goods  alone 
amounted  to,  though  not  for  a  sum  large  enough  to  cover  both  demands,  and 
there  being  no  specific  appropriation  of  the  payment  to  either  of  the  debts,  it  was 
held,  that  on  the  broker  stopping  payment,  the  payment  for  the  goods  ought  to 
be  equitably   apportioned  between  the  several  owners  of  the    goods  sold,  and 
that  they  were  respectively  entitled  to  recover  the  difference  from  the  buyer.(r) 
And  in  this  case  the  jury  were  of  opinion  that  the  stipulation  in  the  contract, 
of  a  "  month  money,"  meant,  in  the  understanding  of  commercial  men,  payment 
at  any  time  within  a  month  ;  and  that  the  payment  in  question  within  the  month 
to  the  brokers,   with  whom  the   defendant  had  dealt  without  the  knowledge  of 
their  principal,  was  a  good  payment  to  bind  their  principal. 

*So,  with  regard  to  general  agents,  the  rule  of  law,  that  if  a  creditor  em- 
ploys an  agent  to  receive  money  of  a  debtor,  and  the  agent  receives  it,  the 
debtor  is  discharged  as  against  the  principal ;  but  if  the  agent,  instead  of  receiv- 
ing money,  sets  off  money  due  from  him  to  the  debtor,  then  the  latter  is  not 
discharged.  In  cases  of  insurance,  usage  m  ay  possibly  introduce  a  different 
rule;  but  at  all  events  an  underwriter  has  never  been  considered  discharged  as 
against  the  assured,  until  his  name  has  been  struck  off  the  policy.  If  the  un- 
derwriter relies  on  his  communication  with  the  broker,  as  discharging  him, 
without  actual  payment  of  the  money,  he  should  insist  that  his  name  should 
be  struck  off  the  policy.  If  that  be  done,  and  the  plaintiff  then  forbears  to  call 
upon  him  for  payment  within  the  period  warranted  by  the  usage  of  the  trade, 
then  the  underwriter  may  be  discharged,  but  otherwise  he  is  not.(s) 

So,  a  tender  of  money  to  an  agent,  authorised  to  receive  payment,  is  as  good 
as  a  tender  to  the  creditor  in  person. (t)  But  the  demand  of  a  debt,  to  do 
away  the  effect  of  a  tender,  must  be  made  by  some  one  authorized  to  give  the 
debtor  a  discharge. (u) 

If  a  creditor  take  the  security  of  the  agent  of  his  debtor  in  payment  of  the 
debt,  unknown  to  the  principal,  and  give  the  agent  a  receipt  as  for  the  money 
due  from  the  principal,  in  consequence  of  which  the  principal  deals  in  any  man- 
ner differently  with  the  agent,  on  the  faith  of  the  receipt,  the  principal  is  dis- 
charged, though  the  security  fail :  but  the  principal  is  not  exonerated  from 
the  payment,  if  he  cannot  show  that  he  was  injured  by  means  of  such  false 
voucher,  and  the  omission  of  the  party  to  inform  him  of  the  truth  in  time,  (v) 

It  should  here  be  observed,  that  with  regard  to  sales  made  through  the  inter- 
vention of  a  known  broker,  the  general  rule,  as  to  payment,  is,  that  upon  a  sale 


(r)  Favenc  v.  Bennett,  11  East.  36. 
(s)  Per  Abbott  Ch.  J.  4  Barn.  &  Aid.  398. 
(t)  Goodland  v.  Blewith,  1  Cainpb.  477. 
*550 


(u)  Coles  v.  Bell,  ibid.  478. 
(v)  Wyatt  v.  The  Marques  of   Hertford,  3 
East,  147. 


Chap.  3.]     Agents  on  Behalf  of  his  Principal.  550 

of  goods  to  a  broker,  the  vendor  is  not  confined  to  the  credit  of  the  latter,  but 
may  resort  to  the  principal  at  the  day  of  payment ;  and  the  vendor  will  not  be 
affected  by  the  state  of  the  accounts  between  them  ;  nor  will  it  be  any  available 
defence  to  say,  that  the  principal  had  previously  paid  the  price  of  the  goods  to 
his  broker  ;  but  if  the  vendor  suffer  the  day  of  payment  to  go  by,  without  a  de- 
mand on  the  vendee,  he  may  thereby  lead  the  principal  into  a  supposition  that 
he  relies  solely  on  the  broker ;  and  if  in  that  case  the  price  of  the  goods  have 
been  paid  to  the  broker,  the  principal  will  be  discharged,  (w)  And  where  a  fac- 
tor made  purchases  for  his  principal,  who  made  payments  to  him  on  account, 
and  afterwards  the  factor  was  pressed  for  payment  by  a  letter  which  came 
to  the  hands  of  the  principal,  who  transmitted  it  to  the  factor,  and  with 
a  knowledge  of  the  fact  paid  him  the  residue,  it  was  *held  by  Lord  Mans- 
field, that  the  principal  was  liable  over  to  the  sellers  for  the  money  he  had  so 
paid  to  his  factor  after  notice. (a;)  And  where  the  defendant  bought  goods  of 
the  plaintiff  in  the  name  and  upon  the  credit  of  Smith  and  Co.,  but  the 
purchase  was  in  reality  made  for  himself,  he  was  held  liable,  (y)  But  if  the 
seller  of  goods,  knowing  at  the  time  that  the  buyer,  though  dealing  with  him 
in  his  own  name,  is  in  truth  the  agent  of  another,  elect  to  give  credit  to  such 
agent,  he  cannot  afterwards  recover  the  value  against  the  known  principal. (2) 
But  a  payment  to  a  broker  varying  from  the  original  terms  of  the  contract,  is 
not  valid ;  nor  will  evidence  of  a  usage  to  authorise  such  a  variation  be  ad- 
missible.(a) 

2.  Of  the  Right  of  set  off  by  the  Buyer,  of  a  Debt  due  to 
him  from  the  Factor,  Broker,  or  Agent.] — Having  in  the  preceding 
section  shown  in  what  cases  a  purchaser  is  discharged  by  payment  to  a  factor, 
broker,  or  agent,  it  is  now  proposed  to  consider  in  what  cases  he  is  allowed  to 
set  off  a  debt  due  to  him  from  the  factor.  The  general  rule  of  law,  in  regard 
to  dealings  with  a  factor,  is,  that  where  he  does  not  disclose  his  principal,  as 
is  seldom  the  case,  but  sells  and  delivers  the  goods  in  his  own  name,  and  as 
his  own  property,  the  person  with  whom  he  deals  may  set  off  a  debt  due  to  him 
from  the  factor,  in  an  action  brought  against  him  by  the  principal  for  the  price 
of  the  goods. (b)(  190)  But  if  upon  a  sale  of  goods  by  a  broker,  the  name  of 
the  principal  be  disclosed,  no  right  of  set  off  can  exist.  (191)     This  was  settled 


(10)  Kymer  v.  Suwercrop,  1  Campb.  109.  (a)     Campbell  v.   Hassel,    1    Stark.    Rep. 

(x)   Poioell  v.  Nelson,  15    East  Rep.  65.  233. 

(y)   Railton  v.   Hodgson,  ibid.  67.  (6)   George  v.    Clagett,  7  Term    Rep.  359. 

(z)  Paterson  v.    Gandase qui,  15   East  Rep.  &  2  Esp.  Rep.  557. 
62.     Addison  v.  Same,  4  Taunt.  Rep.  574. 

(190)  See  Atkinson  v.  Teasdale,  1  Bay,  295.  The  report  of  this  case  is  not  very  satis- 
factory. It  does  not  appear  whether  the  factor  disclosed  his  principal  or  not :  But  from 
the  tenor  of  the  report,  it  would  seem,  that  the  decision  is  in  opposition  to  the  general 
principle  of  law  on  the  subject. 

(191)  Where  goods  are  sold  by  a  person  known  to  be  the  factor  of  a  particular  house, 
a  set-off  cannot  be  made  against  the  principals  by  the  purchaser,  for  a  debt  due  from  the 
factor  in  his  own  right,  though  the  factor  do  carry  on  business  for  himself,  and  nothing  is 
Baid,  at  the  time  of  the  sale,  respecting  the  ownership  of  the  goods.  Browne  v.  Robertson 
&  Hwtshorne.  2  C.  C.  E.  341. 

*551 


551     Of  Contracts  with  a  Factor,  Broker,  or     [Part  III. 

in  the  case  of  Morris  v.  Clea<>bij,(c)  where  the  defendant  purchased,  as  broker 
forB.,  the  goods  of  A.,  for  whom  he  sold  them  under  a  del  credere  commission, 
and  did  not  disclose  at  the  time  the  name  of  A.,  but  disclosed  it  soon  after,  and 
afterwards  paid  A.  the  price,  it  was  determined  by  the  Court  of  King's  Bench, 
that,  in  an  action  by  the  assignees  of  B.  to  recover  the  balance  due  upon  a  re- 
sale of  the  goods  made  by  the  defendant  on    account  of  B.,   the  defendant  was 
not  entitled,  either  under  stat.  2  G.  2.  c.  22.   s.  13.  or  5  Geo.   2.  c.  30.  s.  28. 
to  set  off  the  payment  made  to  A.  :   and  the  general  rule  laid  down  in  this  case 
is,  "  that  the  principal  must  always  be   debtor,  and  that  whether  he    is  known 
in  the  first  instance  or  not :   and  it  will  make  no  difference  whether  the  vendee 
does  or  does  not  know,  at  the  time  of  the  sale,  that  the  broker  sells  for  an  un- 
known principal,  or  that  he  has  a  del  credere  commission." 

It  has  also    been   determined,   with  regard   to    factors,    that    circumstances 
which  show  collusion  between   the  factor  and  buyer,  as  the  insolvency  of  the 
factor   known   to    the    buyer,   would   defeat  the    right    he  *would    otherwise 
have.(d)     The  mere  knowledge,  however,  of  the  seller  being  a  factor,  is   not 
sufficient  to  deprive   the   buyer   of   the  privilege  of    set  off   without  express 
knowledge  that  he  acts  as   agent  in  that  particular  instance ;  because  a    man 
who  is  in  the  habit  of  selling  for  others,  may  likewise  sell  goods  of  his  own.(e) 
No  right  of  set  off  can  be  allowed  between  a  salesman  and  a  buyer  of  cattle 
at  Smithfield  market,  to  an  action    brought  by  the  owner  of  cattle  sold,  though 
evidence  was  offered  to  prove,  that,  by  the  universal  custom  of  the  market,  the 
defendant  was  considered  as  the  debtor  of  the  salesman,  and  not  of  the  owner, 
with  whom  he  had  no  connection.     But  Lord  Kenyon  Ch.  J.   refused  the  evi- 
dence, declaring  no  custom  could  deprive  the  plaintiff  of  that  which  by  the  law 
of  the  land  he  was  entitled  to  receive;  and  laid  particular  stress  upon  the  de- 
fendant's knowledge  that  he  received  the  money  for  the  use  of  another ;  which 
he  said  distinguished  the  case   from  that  of  a  banker  receiving   money    from  a 
factor  whose  principal  he  had  never  heard  of.(/)     And   it  is  also  clear,  that  a 
principal  can  never  be  allowed  to  set  off  a  debt  due  to  him  from  his  own  brok- 
er, against  the  demand  of  one  with  whom  he  has  contracted  through  the  medi- 
um of  the  broker,  (g) 

But  it  may  be  observed  generally,  that  where  the  principal  resides  abroad, 
he  is  presumed  to  be  ignorant  of  the  party  with  whom  his  factor  deals,  and 
therefore  the  whole  credit  is  considered  as  subsisting  between  the  contracting 
parties. (/;) 

5.  IN    WHAT   CASES   THE   PRINCIPAL,    OR    HIS   FACTOR,    BROKER,  OR 

AGENT,  MAY  SUE  OR  BE  SUED. 

1.  In  what  Case  the  Principal  may  sue  or    be     sued.] — It  is  a    general 


(c)  4  Maule  &  Sel.  566.  (/)  Peake's  ^.  Pn.  Cas.  1/7. 

(d)  Escotv.  Milward,  7  Term  Ren.  361.         {g)   Waring  v.  Favenc,  lCampb.Rer.fv>. 
n.  b.  (h)  3  Bos.  &  Pul.  489.     Palerson  \.    Oan- 

(c)  Moore  v.    Clementson,  2  Campb.  Rep.  dasequi,  15  East  Rep.  64. 

24. 

*552 


Chap.  3.]      Agent,  on  Behalf  of  his  Principal  552 

rule,  that  if  a  factor,  broker,  or  agent,  sell  goods  for  his  principal,  the  ac- 
tion may  be  brought  either  in  his  own  name  or  in  that  of  his  principal.  (102) 
But  when  brought  in  the  name  of  the  principal,  he  has  the  benefit  of  the  fac- 
tor's evidence,  (i)  (193)  And  though  the  agent  act  upon  a  del  credere  commis- 
sion, which  makes  him  liable  on  failure  of  the  vendee,  yet  the  responsibility  of 
the  vendee  to  the  principal  is  not  altered  by  that  circumstance. (&)  So,  where 
credit  has  been  properly  given  to  an  agent  on  a  purchase  for  the  use  of  the 
principal,  the  vendor  has,  in  general,  a  right  to  come  upon  the  latter  for  pay- 
ment, without  regard  to  any  transaction  or  account  between  the  principal  and  the 
agent.  Therefore  no  private  agreement,  by  which  it  is  stipulated  between  the 
principal  and  agent,  that  the  latter  only  is  to  be  answerable  to  the  seller,  *can 
affect  the  right  of  the  latter.  (I)  Thus,  in  the  case  of  Kirner  v.  Suercropp,{m) 
which  was  an  action  for  goods  sold  and  delivered  ;  and  the  facts  were,  that 
ihe  plaintiffs  sold  the  goods  to  K.  and  Co.  to  be  taken  away  in  one  month, 
and  paid  for  in  a  month  from  the  sale.  K.  and  Co.  were  really  brokers  for 
the  defendant,  but  that  was  not  known  to  the  plaintiffs  till  some  time  after 
the  sale.  K.  and  Co.  became  insolvent  before  the  expiration  of  the  month, 
the  defendants  having  previously  paid  them  the  price  of  the  goods.  It 
was  contended  for  the  defendant,  that  though  in  general,  upon  a  sale  to  a 
broker,  the  vendor  may  come  upon  the  principal  when  discovered,  the 
doctrine  must  be  taken  with  this  qualification,  that  the  principal  has  not  pre- 
viously paid  the  price  of  the  goods  to  the  broker.  But  Lord  Ellcnborough 
Ch.  J.  said,  "  A  person  selling  goods  is  not  confined  to  the  credit  of  a  broker 
who  buys  them,  but  may  resort  to  the  principal  on  whose  account  they  are 
bought ;  and  he  is  not  affected  by  the  state  of  accounts  between  the  two. 
If  he  let  the  day  of  payment  go  by,  he  may  lead  the  principal  into  a  supposition 
that  he  relies  solely  on  the  broker  ;  and  if  in  that  case  the  price  of  the  goods 
have  been  paid  to  the  broker,  on  account  of  this  deception,  the  principal  shall 
be  discharged.  But  here  payment  was  demanded  on  the  day  it  became 
due,  and  no  reason  was  given  the  defendant  to  believe  that  his  broker  alone 
was  trusted :  and  accordingly  a  verdict  was  directed  for  the  plaintiff."  And 
for  the  same  reason  a  principal  cannot,  under  these  circumstances,  protect 
himself  by  setting  up  a  balance  due  to  him  from  his  own  broker,  (n) 

And  it  may  be   taken  as  a  general   rule,   that  the  principal  is  liable,  when 


(i)  1  Atk.  248.  (,„)  i  Campb.  Rep.  109.  Speeringv.   De- 

Ik)  4Maule  &  Sel.  574.  grave,2  Vcrn.  643. 

(I)  Palcy  on  Principal  &  Agent,  186.  (n)    Waring  v.  Favenc,  Ante,  549. 


(192)  See  Girard  v.  Taggart,  5  Serg.  &  R.  19,  27.  By  the  decision  in  this  case,  the 
authority  of  Willing  v.  Rowland,  cited  4  Dal.  106,  in  note  ;  and  also  cited  in  3  Yeates, 
342.,  was  overruled.  In  all  cases  of  contracts  with  the  United  States,  through  their  agents, 
the  United  States  have  a  right  to  enforce  the  performance  of  such  contracts,  or  to  recover 
damages  for  their  violation,  by  actions  in  their  own  name,  unless  a  different  mode  of 
suit  be  by  law  prescribed.     Duganv.  United  Stales,  3   Wheat.  172. 

(193)  See  Sewall  v.  Fitch,  8  Cowen,  215. 

*553 


553      Of  Contracts  with  a  Factor,  Broker,  or  [Part  III. 

discovered,  whether  his  name  be  disclosed  or  not  at  the  time  of  the  contract, 
unless  in  particular  cases,  where,  by  the  usage  of  trade,  the  credit  is  under- 
stood to  be  confined  to  the  agent,  (o)  But  where  A.,  a  foreign  merchant  em- 
ployed B.  to  purchase  goods  on  commission ;  the  vendors  (with  the  knowledge 
that  the  purchases  were  made  on  account  of  A.)  made  out  the  invoices  to  B., 
and  took  in  payment  his  acceptances  :  it  was  held,  that  there  was  no  contract 
of  sale  as  between  A.  and  B.(p) 

2.  In  what  Cases  the  Factor,  Broker,  or  Agent  may  sue  or  be  sued.] 

Where  a  contract  is  made  by  a  factor,  an  action  may  be  brought  upon  it  in 

his  own  name.  And  it  is  the  same  thing  whether  the  contract  be  made  by  the 
factor  solely  upon  his  own  credit,  as  is  generally  the  case  with  factors  abroad, 
or  as  the  known  representative  of  another :  and  it  is  indifferent  whether  he 
act  under  a  del  credere  commission  or  not.(g)  But  when  the  principal  has  once 
come  forward  and  *demanded  payment,  and  taken  steps  for  the  recovery  of  the 
debt,  the  factor  is  no  longer  a  creditor,  (r) 

It  has  also  been  determined,  that  where  a  factor,  having  money  due  to  him 
from  his  principal,  who  receives  cloths,  and  is  authorised  to  sell  them  in  his 
own  name,  but  makes  the  buyer  debtor  to  himself,  though  he  is  not  answerable 
for  the  debts,  yet  he  has  a  right  to  receive  the  money,  and  his  receipt  is  a  dis- 
charge to  the  buyer :  he  has  also  a  right  to  bring  an  action  against  him  to  com- 
pel the  payment ;  and  it  would  be  no  defence  for  the  buyer  in  that  action  to 
say,  that,  as  between  him  and  the  principal,  he  (the  buyer)  ought  to  have  that 
money,  because  the  principal  is  indebted  to  him  in  more  than  that  sum  ;  for 
the  principal  himself  can  never  say  that,  but  where  the  factor  has  nothing  due 
to  him."  And  in  the  same  case,  it  was  observed  by  Lord  Mansfield,  "  That 
there  is  no  case  in  law  or  equity,  where  a  factor  having  money  due  to  him  to 
the  amount  of  the  debt  in  dispute  was  ever  prevented  from  taking  money  for 
cloths  in  his  hands. "(s) 

So,  a  broker,  who  has  advanced  money  on  goods,  may  declare  on  a  contract 
respecting  the  sale  of  them  in  his  own  name,  though  in  the  sale-note  the  name 
of  the  principal  is  inserted,  (t)  So,  in  the  case  of  Banfill  v.  Leigh  and  ano- 
ther,^) where  A.  and  B.  assigned  to  the  plaintiff  all  debts  due  to  them,  and 
gave  him  a  power  of  attorney  to  receive  and  compound  for  the  same,  under 
which  the  plaintiff  submitted  to  arbitration  the  matters  indifference  subsisting 
between  his  principals  and  the  defendants  ;  and  the  plaintiff  and  defendants 
mutually  promised  to  perform  the  award.  The  arbitrator  awarded  a  sum  of 
money  to  be  paid  by  the  defendants  to  the  plaintiff  as  such  attorney,  and  the 


(o)  Vide  Paterson  v.  Gandasequi,  15  East 
Rep.  62  and  Mdison  v.  Same,  4  Taunt.  Rep. 
574. 

(p)  Seymour  v.  Pychlau,  1  Barn.  &  Aid. 
14. 

(q)  1  Atk.  243.  Bui.  Ni.  Pri.  130.  3  Bos.  & 
Pul.  491,495. 

*554 


(r)   Sadler  v.  Leigh,  4  Campb.  Rep.  195. 

(s)  Per  Curiam  in  Drinkicater  v.  Goodwin, 
Cowp.255.  See  also  Loft.  331.  S.  P. 

(t)  Jllkins  v.  Amber,  2  Esp.  Rep.  493.  See 
also  1  Campb.  337. 

(w)  8  Term  Rep.  571. 


Chap.  3-]        Agent,  on  Behalf  of  his  Principal.  554 

action  was  brought  in  his  name  for  the  recovery  of  that  sum.     The  Court  held, 
that  the  action  was  well  brought  in  the  name  of  the  plaintiff. 

With  regard  to  actions  against  agents,  the  general  rule  is,  that  if  a  man  is 
known  to  act  merely  as  an  agent,  and  the  principal  is  known,  and  there  is  no 
express  engagement  by  the  agent,  nor  any  circumstances  from  which  it 
may  be  inferred,  that  the  credit  is  given  to  him,  the  agent,  though  the  person 
immediately  making  the  contract,  is  not  subject  to  personal  responsibility. 
Indeed,  it  has  been  decided,  that  if  a  servant  do  not  bind  himself,  by  express 
words,  and  the  thing  come  to  the  use  of  the  master,  he  is  not  liable  to  be  sued.(u) 

And  it  has  been  said,  that  no  rule  of  law  is  better  ascertained,  or  stands  upon 
a  stronger  foundation  than  this,  that  where   an  agent  names  his  principal,  the 
principal  is  responsible    and  not  the  agent. (w)     And  therefore  agents,  when 
acting  for   their    principals,    under    a    proper    authority,    are    not   in   general 
•liable  in  their  individual  capacities,  (a:)     Thus,  in  the  case  of  Owen  v.  Gooch,(y) 
which  was  an  action  for  work  done  ;  and  the  order  was  proved  to  have  been 
given  by  Gooch,  (the  defendant.)     The  defence  was,  that  the  work  was  order- 
ed for   another  person,  named    Tippel ;  that  the  work  in  question  was  done  at 
TippeVs  house,  and  that  the   plaintiff  at  the  time  of  the  order,  was   informed 
that  the  work  was  on  TippeVs  account.     The  entry  also  in  the  plaintiff's  books 
was,  "  Tippel,  by  the  order  of  Gooch."     Lord   Kenyon  Ch.  J.  ruled,  "That 
the  mere  act  of  ordering  the  goods   for  another  does  not  make  the  person  giv. 
ing  the  order  liable.     If  a  man  order  goods,  though  they  be  in  fact  for  another, 
yet  if  the  tradesman   were  not  informed  at  the  time  they   were  so,  he  who  or- 
dered them  is  certainly  liable  ;  for  the  tradesman  must  be  presumed  to  have 
looked  to  his  credit  only.     So,  if  they  were  ordered  for   another  person,  and 
the  tradesman  refuse  to  deliver  them  to  that  person's  credit,  but  to  his  only  who 
ordered  them,  there  is  then  no  pretext  for  charging  such  third  person  ;  or  if  the 
goods  were  ordered  to  be  delivered  on  account  of  another,  and  after  the  deliv- 
ery, the  person  who  gave  the  order  refuses  to  inform  the  tradesman  who  the 
principal  is,  that  he  may  sue  him  ;  under  such  circumstances  he  is  himself  lia- 
ble.    But  wherever  an  order  is  given  by  one  person  for  another,  and  he  informs 
the  tradesman  who  that  person  is  for   whose  use  the  goods   are   ordered,  he 
thereby  declares  himself  to  be  merely  an  agent ;  and  there  is  no  foundation  for 
holding  him   to  be  liable.     In  this  case   the  plaintiff  was  informed   of  all   the 
circumstances ;  Gooch  gave  the  order  for  Tippel ;  the  goods  were  sent  to  Tip- 
peVs house  and  the  entry  made  in  his  name.     There  is   no   colour  for  making 
Gooch  the  debtor." 

So,  where  money  is  paid  by  mistake  to  an  agent  for  the  use  of  his  princi- 
pal, and  the  agent  has  paid  it  over,  he  is  not  liable  in  an  action  by  the  person 
who  mispaid  it ;  because  it  is  just,  that  one  man  should  not  be  a  loser  by  the 
mistake  of  another  ;  and  the  person  who  made  the  mistake  is  not  without  re- 
dress, but  has  his  remedy  over  against  the  principal.     On  the  other  hand  it  is 


(»)  Dy.  230.  a.  (x)  Per  Lord  Ch.  Talbot,  3  P.  Wm?.279. 

(w)  Per  Lord  Erkskine,  ex  parte  Hartop,         («)  2  Esp.  Rep.  567. 
12  Ves.  352.  '  r        * 

*555 


§55     Of  Contracts  with  a  Factor,  Broker,  or    [Part  III. 

just,  that  as  the  agent  ought  not  to  lose,  he  should  not  be  a  gainer  by  the  mis- 
take :  and  therefore,  if,  after  the  payment  so  made  to  him,  and  before  he  has 
paid  the  money  over  to  his  principal,  the  person  corrects  the  mistake,  and  gives 
him  notice  not  to  pay  it  over  to  his  principal ;  the  agent  cannot  afterwards  pay 
it  to  his  principal,  without  making  himself  liable  to  the  real  owner  for  the 
amount,  (a)  But  the  mere  circumstance  of  passing  such  money  in  account,  or 
making  rest,  without  any  new  credit  given,  fresh  bills  accepted,  or  further  sum 
advanced  for  the  principal,  in  consequence  of  it,  is  not  equivalent  to  the  pay- 
ment of  it  over  to  the  principal.(i) 

*But  if  a  factor,  employed  by  a  principal  resident  abroad,  buy  or  sell  goods 
for  him  here,  an  action  will  lie  against  or  for  him  in  his  own  name ;  for  the 
credit  will  be  presumed  to  be  given  to  him  in  the  first  case,  and  in  the  last,  the 
promise  to  be  made  to  him.(c) 

So,  where  a  factor  or  servant  buy  goods  generally,  and  do  not  upon  the  con- 
tract declare  that  he  buys  only  as  factor  or  servant,  he  is  chargeable  in  his  own 
rio-ht ;  and  in  all  cases  where  a  factor  delivers  goods  as  his  own,  and  conceals 
his  principal,  he  is  to  be  taken  to  all  intents  as  the  principal,  (d)  This  notifica- 
tion of  the  principal  must  be  at  the  time  of  the  contract ;  it  is  not  sufficient  to 
make  it  afterwards.  Thus,  in  an  action  for  the  non-delivery  of  goods,  it 
appeared  that  the  defendant  had  entered  into  and  signed  a  written  contract, 
engaging  to  deliver  certain  goods  to  the  plaintiff,  which  he  had  failed  to  do. 
The  defence  was,  that  the  defendant  was  merely  a  factor,  and  that  this  was 
known  to  the  plaintiff  before  the  action  brought,  but  subsequent  to  the  contract. 
Lord  Ellenborough  Ch.  J.  was  of  opinion  that  the  defendant  was  liable,  the  prin- 
cipal not  having  been  notified  at  the  time,  and  no  subsequent  act  being  done  to 
shew  that  the  plaintiff  waived  the  liability  of  the  defendant,  and  relied  upon  the 
principal. (e)  And  though  it  be  known  that  the  agent  acts  in  a  representative 
character,  yet  if  the  principal  be  not  known,  he  is  bound  personally.  Thus, 
an  auctioneer,  who  did  not  disclose  his  principal  at  the  time  of  the  sale,  has 
been  held  personally  liable,  upon  the  non-execution  of  the  contract  of  sale.(/) 

So,  agents  are  liable  to  be  sued  upon  contracts  made  on  behalf  of  their  prin- 
cipals, where  they  individually  bind  themselves  by  their  own  undertaking  :  thus, 
where  an  agent  by  writing  acknowledged  to  have  received  goods  for  his  em- 
ployer, and  by  the  same  writing  bound  himself  to  pay  at  a  day  certain  ;  it 
was  held  by  all  the  judges,  that  an  action  of  assumpsit  would  lie  against  him.(^) 
So,  a  bill  of  exchange  drawn  upon  an  agent  and  accepted  by  him  generally, 
binds  him,  at  least  against  a  third  person  :  as  in  the  case  of  the  Cashier  of  the 
York  Buildings  Company,  to  whom  a  bill  was  addressed  by  the  name  of  J.  B. 


(a)  Per  Lord  Mansfield,  Cowp.  566.    563.  (e)  Morgan  v.  Corder,  sittings  after  Easter 

See  also  Sadler  v.  Evans,  4  Burr.  1984.    Bui.  Term,  1809.  Guildhall,  Paley  on   Principal 

N.P.  133.  S.  P.  and  Agent,  293 

(h)  Buller  v.  Harrison,  Cowp.  565.  (/)  Hanson  v.  Roberdeau,  Peake  s  Ni.  tn. 

(c)   Gonzales  v.  Sladen,  Bull.  Ni.  Pri.  130.  Cas.  120. 

(</)  Per    Lord    Mansfield,  7  Term  Rep.  (?)  Dy.  230.  a. 
350. 

*556 


Chap.  3.]     Agent,  on  Behalf  of  his  Principal.  556 

Cashier  of  the  York  Buildings  Company,  and  by  him  accepted  generally  thus, 
"  Accepted,  J.  B."  The  agent  was  held  liable  to  the  payee,  (h)  But  it 
was  said,  that,  perhaps,  he  would  not  be  so  to  the  drawer  who  knew  that  the 
bill  was  drawn  and  accepted  on  account  of  the  company,  (i)  So,  where  a 
merchant  drew  upon  his  factor  in  these  terms,  "  Pay  to  Messrs.  M—  and 
Co.,  or  order  195/.  out  of  the  produce  of  my  goods,  now  lying  at  *  Gibraltar, 
&c,  as  soon  as  the  same  shall  come  to  your  hands,  after  paying  the  present 
acceptances  ;"  to  which  the  factor  underwrote,  "  I  agree  to  conform  to  this  or- 
der," it  was  decided,  that  he  was  liable  to  the  holder,  having  received  assets, 
though  the  balance  of  accounts  between  him  and  his  principal  was  in  his  fa- 
vour. (A;)  So,  where  an  agent  covenanted  for  himself,  his  heirs,  &c.  under  his 
own  hand  and  seal  for  the  act  of  another,  was  adjudged  to  be  personally  lia- 
ble, though  he  describe  himself  in  the  deed  as  covenanting  for  and  on  the  part 
and  behalf  of  such  other  person. (I)  So  a  bond  reciting  that  differences 
subsisted  between  7.  F.  and  the  plaintiff;  and  was  conditioned  to  be  void  if 
G.  H.  the  defendant,  for  and  on  behalf  of  I.  F.,  should  perform  the  award  of 
arbitrators.  The  award  was  made,  directing  that  the  defendant  should  pay  a 
certain  sum,  and  that  the  plaintiff  and  defendant  should  execute  general  re- 
leases :  it  was  determined,  that  the  submission  bound  the  defendant,  and  that 
the  award  was  good,  (m) 

But  upon  the  sale  of  goods,  a  warranty  by  a  known  broker,  agent,  or  ser- 
vant, made  pursuant  to  his  authority,  will  not  subject  him  to  answer  personal- 
ly, unless  his  own  responsibility  appear  by  the  terms  of  the  warranty  to  be 
pledged,  or  to  form  the  consideration  of  the  sale.(rc)  But  if  a  special  agent 
employed  to  sell,  with  orders  not  to  warrant,  nevertheless  do  so,  (in  which 
case  it  has  been  seen,  the  warranty  would  not  bind  the  principal,)  the  agent 
will  be  answerable  ;  otherwise  the  buyer  would  be  without  remedy.(o)  (194) 

So,  where  a  broker,  who  was  limited  by  his  commission  to  the  purchase  of 
a  particular  kind  of  silk,  having  contracted  on  behalf  of  his  principal  for  the 
purchase  of  a  different  kind,  it  was  held,  that  his  principal  was  not  bound  by  the 
contract,  but  that  he  was  himself  liable  to  the  sellers  for  the  loss  upon  the  re- 
sale, (p)  So,  if  an  agent  undertake  for  his  principal  to  pay  a  sum  of  money 
without  any  authority,  he  only  is  liable  upon  the  promise. (q)  Or,  if  without 
any  authority  he  borrows  money,  (r) 


(h)  Stra.  955.  (0)  3  T.  R.  761. 

(0  tt>"j.  (j>)  1  Esp.  Rep.  1 11.  and  see  3  Term  Rep. 

(fc)  2B1.  1072.  761.  V 

(I)  Jppleton  v.  Binhs,  5  East  Rep.  148.  (q)   3  P.  Wins.  279. 

(m)  Clayhill  v.  Fitzgerald,  1  Wils.  28.  58.         (r)  1  En.  Cap.  Abr.308. 

(«)3T.  R.  761. 


(194)  Where  a  factor  conceals  his  principal,  and  sells  and  delivers  the  goods  of  the  prin- 
cipal, in  his  own  name,  and  warrants  them,  the  purchaser  has  a  right,  to  all  intents  and 
purposes,  to  consider  him  as  the  principal,  and  may  maintain  an  action  against  him  on  a 
breach  of  the  warranty.    Davenport  v.  Riley,  2  M'Cord,  198. 

68  *557 


557       Of  Contracts  loith  a  Factor,  Broker,  or     [Part  III. 

6.  OF  THE   RIGHTS    AND    REMEDIES    BETWEEN   PRINCIPAL,    FACTOR, 

BROKER,  OR  AGENT,  INTER  SE. 

1.  Of  a  Factor,  Broker,  or  Agent's  Liability  on  a  Promise  to 
indemnify  the  Principal,  &c] — Where  a  broker  buys  goods  for  his  prin- 
cipal, and  agrees  for  a  certain  per  centage  to  indemnify  him  from  any  loss  on 
the  re-sale  of  them ;  if  the  principal  has  a  fair  opportunity  *of  selling  the 
the  goods  to  advantage,  but  neglects  it,  the  broker  is  discharged,  though  the 
principal  afterwards  sells  them  at  a  loss,  (s) 

So,  an  agent  purchasing  foreign  bills  for  his  principal,  and  indorsing  them  to 
him  without  any  qualification,  is  liable  to  the  principal  on  his  indorsement,  how- 
ever small  the  commission  may  be  which  he  gets  upon  the  purchase.(i) 

2.  The  remedy  against  a  Factor,  Broker,  or  Agent,  for  not  duly 
accounting  or  paying  over  Money  to  his  Principal.] — Where  the  trans- 
actions between  a  factor,  broker,  or  agent,  involve  mutual  accounts,  which 
require  a  long  and  laborious  examination  before  the  result  can  be  ascertained, 
an  action  of  account  or  bill  in  equity  is  the  proper  remedy  ;(w)  though  an 
action  at  law  will  certainly  lie  for  the  balance  of  such  account(u)  or  for 
damages  for  refusing  to  come  to  an  account,  (w)  However  in  actions  at  law 
for  the  recovery  of  the  balance  of  accounts  between  a  factor  and  his  principal, 
where  the  accounts  have  been  long  and  intricate,  and  it  has  become  necessary 
to  enter  into  a  protracted  investigation  of  them  at  Nisi  Prius,  some  judges 
have  refused  to  try  such  causes,  not  only  upon  the  ground  that  justice  could 
not  be  done,  it  being  almost  impossible  for  the  jury  to  enter  into  and  examine 
minutely  the  accounts  in  detail ;  but  because  there  are  specific  remedies  open 
to  the  parties  better  adapted  to  do  complete  justice,  (a;)  (195) 

3.  When  a  Factor,  Broker,  or  Agent  is  answerable  for  Negli- 
gence, &c] — If  a  merchant  directs  his  factor  or  correspondent  to  insure, 
and  he  neglects  doing  so,  he  is  liable  to  an  action  for  this  neglect  of  duty.(196) 


j 


(s)  Curry  v.  Edennon,  3  Term  Rep.  524.  (t>)   12  Mod.  521.     Sty.  287.  1  Bro.  Pari. 

(t)   Goupyv.  Harden,  2  Marsh.  Rep.  454.  Cas.  133.  8vo  ed.  2  Stra.  1027. 

7  Taunt.  Rep.  159.  S.  C.  (to)  Carth.  39. 

(u)  Godfrey  v.  Saunders,  3  Wils.  Rep.   106.  (x)  Lord  Holt,  Carth.   89.,  and  Lord  El- 

Eq    Cas.  Abr.  5.     Bac.  Abr.   tit.  Accompt.  lenborpugh,  2  Campb.  Rep.  238.     But  J3ee  5 

1  Salk.  9.    Carth.  89.    1  Taunt.  572.  Taunt.  Rep.  431. 


(195)  A  factor  having  sold  goods  consigned  to  him,  and  having  apprized  the  principal 
of  the  fact,  may  wait  tto  receive  instructions  as  to  the  mode  of  remitting  the  net  proceeds; 
and  is  not  liable  to  an  action  for  the  amount,  until  a  default  on  his  part,  in  remitting  or 
paying  the  money,  according  to  the  orders  of  the  principal.  Ferris  v.  Paris,  10  J.  R. 
285 

(196)  If  a  person,  who  is  under  no  obligation  to  execute  an  order  for  insurance,  under- 
take to  do  so,  and  executes  the  order  imperfectly,  he  is  answerable  for  the  consequences. 
French  v.  Reed,  6  Binn.  308.  An  agent  is  bound  to  make  insurance  according  to  the  order 
of  his  principal ;  1.  Where  the  principal  has  funds  in  his  hands.  2.  Where  the  principal 
consigns  goods  to  him,  and  he  accepts  the  bill  of  lading.  3.  Where  he  has  been  in  the 
practice  of  making  insurance  for  his  principal.  Id.  If  a  merchant,  who  is  in  the  habit  of 
effecting  insurances  for  his  correspondent,  or  is  bound  to  insure  ;  neglect  to  do  so,  or 

*558 


Chap.  3.]       Agent,  on.  Behalf  of  his  Principal  558 

Thus,  in  the  case  of  Smith  v.  Lascelles,(y)  which  was  an  action  on  the  case 
for  neglecting  to  make  an  insurance  on  the  freight  of  goods  shipped  from 
Dominica  to  London.  The  facts  were,  that  the  plaintiff,  being  indebted  to 
the  defendant  in  850Z.  in  February  1785,  mortgaged  to  him  his  interest  in  the 
goods  and  freight,  by  way  of  security ;  in  which  mortgage  was  contained  a 
proviso,  that  the  deed  should  be  void  in  case  of  payment  in  August  1785.  In 
July  1785,  the  plaintiff  in  a  letter  inclosing  the  bills  of  lading,  desired  the  defen- 
dant to  procure  an  insurance  on  the  goods  and  freight,  which  letter  could  not 
have  been  received  before  the  mortgage  became  absolute.  The  defendant  did 
cause  insurance  to  be  made  on  the  goods,  though  not  on  the  freight.  At  the 
trial,  proof  was  given  of  a  letter  having  been  received  by  the  *defendant 
from  the  plaintiff,  but  it  did  not  appear  whether  it  was  the  letter  in  question.  A 
verdict  having  been  found  for  the  plaintiff,  a  motion  was  made  to  set  aside  the 
verdict ;  but  the  court  refused  the  rule,  and  held,  that  the  plaintiff  was  entitled 
to  recover.  Butter  J.  said,  "It  is  now  settled  as  clear  law,  that  there  are  three 
instances  in  which  such  an  order  to  insure  must  be  obeyed.  First,  where  a 
merchant  abroad  has  effects  in  the  hands  of  his  correspondent  here,  he  has  a 
right  to  expect  that  he  will  obey  an  order  to  insure,  because  he  is  entitled  to 
call  his  monev  out  of  the.  other's  hands  when,  and  in  what  manner  he  pleases. 
The  second  class  of  cases  is,  where  the  merchant  abroad  has  no  effects  in  the 
hands  of  his  correspondent,  yet  if  the  course  of  dealing  between  them  be  such, 
that  the  one  has  been  used  to  send  orders  for  insurance,  and  the  other  to  com- 
ply with  them,  the  former  has  a  right  to  expect  that  his  orders  for  insurance 
will  still  be  obeyed,  unless  the  latter  give  him  notice  to  discontinue  that   course 


(y)  2  Term  Rep.  187.     See  also    Delancy     v.   Stodart,  1  Term  Rep.  22.  S.  P. 


executes  the  order  in  an  insufficient  manner,  he  will  be  considered  as  insurer  himself. 
De  Tastet  v.  Crousillat,  C.  G.  Oct.  1807.  S.  C.  Oct.  1806.  Morris  v.  Summed,  C.  C. 
1803.  MS.  Reports.  Whart.  Dig.  8.  Where  an  agent  neglected  to  effect  insurance 
according  to  a  letter  of  instructions  which  stated,  that  the  owner  valued  the  vessel  at 
4000  dollars,  threefourths  of  which  sum  he  wished  to  be  insured  ;  it  was  held,  that  he 
was  liable  as  in  case  of  a  valued  policy  ;  though  the  letter  contained  no  precise  order 
to  have  the  policy  valued.     Miner  v.  Tagert,  3  Binn.    204. 

But  where  the  owner  of  a  vessel  in  a  foreign  port,  directed  his  correspondent  here,  to 
procure  insurance  upon  the  vessel  ;  and  the  agent  not  being  able  to  procure  it  to  be  done 
in  his  vicinity,  extended  his  endeavors  to  a  more  distant  place,  and  limited  the  premium 
at  so  low  a  rate,  that  insurance  could  not  be  obtained  ;  it  was  held,  that  the  agent  was  not 
liable  to  the  owner  on  the  ground  of  negligence.  Sanchcs  v.  Davenport,  6  Mass.  Rep.  258. 
So,  if  an  agent  be  instructed  by  his  principal,  to  effect  insurance  upon  a  vessel,  and  an 
insurance  made  pursuant  to  instructions,  would  have  been  void,  or  not  binding  upon  the 
insurers,  the  neolect  to  procure  such  insurance  will  not  render  the  agent  liable  to  the  prin- 
cipal. Msop  v.  Coil,  12  Mass.  Rep.  40.  And  so,  a  promise  by  a  merchant's  factor  or 
a<rent  that  he  would  write  to  his  orincipal  to  effect  insurance,  does  not  bind  the  principal 
to  insure.  Randolph  v.  Ware,  3  Cranch,  503.  And  upon  similar  principles,  if  the  con- 
signor inform  his  consignee  or  factor,  that  he  had  made  a  consignment  to  him,  and  should 
anticipate  the  avails  by  drawing  certain  bills  of  exchange  upon  him,  the  factor,  by  accepting 
the  consignment,  becomes  bound  to  pay  the  bills;  and  in  case  of  non-aceeptance,  or  non- 
payment,0 is  liable  to  the  drawer  for  the  amount  of  damages  and  costs  which  he  may 
have  been  compelled  to  pay  by  reason  of  the  bills  being  protested.  Urqwai  v.  M'lvcr, 
A3.  R.  103.     See  ante,  notes  (175)    (176)  (178)  (179.) 

*55y 


559         Of  Contracts  with  a  Factor,  Broker,  or  [Part  III. 

of  dealing.  Thirdly,  if  the  merchant  abroad  send  bills  of  lading  to  his  cor- 
respondent here,  he  may  engraft  on  them  an  order  to  insure,  as  the  implied 
condition  on  which  the  bills  of  lading  shall  be  accepted,  which  the  other  must 
obey  if  he  accept  them,  for  it  is  one  entire  transaction. 

So,  where  a  merchant  here  had  accepted  an  order  for  insurance,  and  limited 
the  broker  to  too  small  a  premium,  in  consequence  of  which  no  insurance  could 
be  procured  ;  the  court  held,  that  the  merchant  was  liable  to  make  good  the 
loss  to  his  correspondent,  {z)  So,  where  a  merchant  directs  his  factor  or  corres- 
pondent to  insure,  and  he  charges  him  with  it  as  if  done,  and  a  loss  happens,  he 
shall  be  charged  as  insurer ;  but  if  the  factor  employs  an  agent,  this  equity 
will  not  extend  to  that  agent,  (a)  But  if  an  agent,  to  whom  orders  to  insure  are 
sent,  does  what  is  usual  to  get  the  insurance  made,  that  is  sufficient ;  (b)  be- 
cause he  is  no  insurer,  and  is  not  obliged  to  get  insurance  at  all  events.  Thus, 
if  he  send  to  LloyiVs,  and  the  underwriters  refuse  to  take  the  risk  at  any  pre- 
mium; and  he  afterwards  send  to  get  insurance  done  at  Newcastle,  he  has  done 
his  duty,  and  can  never  afterwards  be  charged  in  this  action  ;  more  especial- 
ly if  the  plaintiff  adopt  and  approve  his  acts. 

In  order,  however,  to  maintain  an  action  on  the  case  against  an  agent  for 
negligence,  the  principal  must  show,  that  the  agent  was  guilty  either  of  a  breach 
of  ■positive  orders,  gross  negligence,  or  fraud,  (c) 

A  banker  in  London  receiving  bills  from  his  correspondents  in  the  country, 
to  whom  they  had  been  indorsed,  to  present  for  payment,  *is  not  guilty  of 
negligence  in  giving  up  such  bills  to  to  the  acceptor  upon  receiving  a  check 
upon  a  banker  for  the  amount,  although  it  turn  out  that  such  check  is  dishonour- 
ed, (d)  So,  where  A.  entrusted  B.  with  goods  to  sell  in  India,  agreeing 
to  take  back  from  B.  what  he  should  not  be  able  to  sell,  and  allowing  him 
what  he  should  obtain  beyond  a  certain  price,  with  liberty  to  sell  them  for 
what  he  could  get,  if  he  could  not  obtain  that  price.  B.  not  being  able  to  sell 
the  goods  in  India  himself,  left  them  with  an  agent  to  be  disposed  of  by  him, 
directing  the  agent  to  remit  the  money  to  himself  in  England.  It  was  held,(e) 
that  A.  could  not  maintain  trover  against  B.  for  the  goods. 

3.  Of  the  Factor's  Lien  on  the  Goods,  &c.  of  his  Principal.] — 
A  factor  has  a  lien  on  goods  consigned  to  him,  for  the  general  balance  due  to 
him,  as  well  as  for  incidental  charges  attending  the  particular  goods  in  his 
hands  :(/)  (197)  but   this   lien  remains   though   he  may  have  parted  with  the 


(z)  Wallace  v.  Tell/air,  2  Term  Rep.  188. 
n.  a. 

(a)  Tickell  v.  Short,  2  Ves.  239. 

(6)  Smith  v.  Cologan,  2  Term  Rep.  188.  n. 
a. 

(f)  Moor  v.  Mourgue,  Cowp.  479. 

(d)  Russel  v.  Hankey,  6  Term  Rep.  12. 


(e)  Bromley  v.   Cox-well,  2  Bos.  &  Pul.  438. 

(/)  Kruger  v.  Wilcocks,  Ambl.  252.  1 
Bur.  494.  1  Bl.  Rep.  104.  1  East  Rep.  4. 
4- 6  East  Rep.  91.  n.  a.  6  East,  23.  in  notis. 
S.  C.  See  also  Lickbarrow  v.  Mason,  2  Term 
Rep.  63. 


(197)  Where  a  factor  has  contracted,  in  behalf  of  his  principal,  for  the  purchase  of 
goods,  apart  only  of  which  has  heen  received,  and  the  agent  has  funds  of  the  principal,  in 
his  hands,  more  than  sufficient  to  pay  the  price  of  such  part,  and  all  charges  j  he  has  still  a 

#560 


Chap.  3-]      Jlgent,  on  Behalf  of  his  Principal.  560 

actual  possession   of  the  goods.  (198)     Thus,    in  the  case  of  Drinkwater  v. 
Goodwin,(g)    however,  it  was  held,  that  a  factor  has  a  lien  on  the  price  of  the 
goods  in  the  hands  of  the  buyer  ;  for  though  he  has  not  the  actual  possession 
of  them,  yet  if  he  has  a  power  of  giving  a  discharge,  or  bringing  an  action,  he 
has  a  right  to  retain    the  money  in  consequence  of  his  lien,  as  much  as   mort- 
gagee has  by  the  title  deeds  of  an  estate  in  his  hands,  though  he  is  not  in  pos- 
session.    But  though  the  general  rule  of  law  be,  that  a  factor  has  a  lien  on  the 
goods  of  his  principal  for  his  general  balance,  yet  this,  like  other  general  rules, 
may  be  controlled  by  the  agreement  of  the  parties  ;  as  if  A.  deposit  goods  with 
B.  for  sale,  and  B.  promise  to  pay  the  proceeds  to  A.  when  sold  ;    B.  has   no 
lien  on  these  goods  (if  not  sold)    for  the  balance  of  his  general  account  arising 
upon  other  articles  ;  the  express  stipulation  in  this  case  negativing  the  general 
rule  of  law.  (A) 

So,  a  factor  has  no  lien  on  goods  for  a  general  balance,  unless  they  come  in- 
to his  actual  possession,  (i)  And  if  a  factor  accept  bills  drawn  by  his  princi- 
pal upon  the  faith  of  consignments  agreed  to  be  made  by  the  principal  to  the 
factor,  and  both  of  them  become  bankrupts  before  a  cargo  consigned  come  in- 
to possession  of  the  factor,  his  assignees  have  no  property  in  such  cargo,  and 
cannot  recover  the  produce  of  it  against  the  assignees  of  the  principal,  if  they 
have  sold  it  and  received  the  purchase  money.  (A) 

•So,  where  a  trader,  after  a  secret  act  of  bankruptcy,  consigns  goods  to  a 
factor,  who  advances  money  thereon  ;  the  latter  has  ho  lien  on  such  goods,  but 
must  deliver  them  up  to  the  assignees  of  the  bankrupt  trader.  (/) 

So,  if  A.  employs  a  factor  to  sell  goods  he  has  no  lien  upon  them,  in  respect 
of  any  debt  due  for  other  goods  sold  by  him  in  his  own  name  to  A.  on  the  account 
of  another  employer,  previous  to  his  being  employed  by  A.(m)  But  the  as- 
signee of  a  policy  of  insurance  on  goods,  who  becomes  such  by  the  indorsement 
to  hijn  of  the  bill  of  lading  of  the  goods  by  die  consignor,  after  he  had  directed 
his  correspondent  to  make  the  insurance,  takes  it  subject  to  the  lien  of  the 
correspondent  of  the  consignor  for  his  general  balance  ;  and  can  only  claim, 
subject  to  that  lien,  the  money  received  on  such  policy  by  the  broker,  in  whose 

(<r)  Gowp.  251.;    and  see  Paley  on  Prin-  (i)  Kinlock  v.  Craig,  3  Term  Rep.    110. 

cipal  and  Agent,    cli.   2.  s.  3.,  where  all  the  (A.)  Kinlock  v.  Craig,   3  Term  Rep.  783.    4 

cases  on  this  subject  are  collected.  Bio.  P.  C.  47.  8vo.  ed.  'S.  C 

{h)    Walker  v.  Birch,    6  Term   Rep.  258.  (/)    Copland  v.  Stein,  S  Term  Rop.  190. 

See  also  Skiffken  v.  Wray,  6  East  Rep.  371.  (»/i)  Houghtonx.Matheie,  3  Bos.  &  Pul.485. 

right  to  hold  that  part  to  indemnify  himself  for  his  engagement  on  account  of  the  portion 
yet  to  be  delivered.  Stevens  v.  Robins,  12  Mass.  Rep.  180.  See  further  in  WArcy  v.  Lyle, 
5  Binn.  441.  Ddaioare  Ins.  Co.  v.  Delaunie,  3  Binn.  295.  Though  a  factor  has  a  lien  on  the 
goods  of  his  principal  ;  yet  he  cannot  retain,  against  the  order  of  the  principal,  to  a  greater 
amount  than  will  be  necessary  to  secure  his  debt.  Jolly  v.  Blanchanl,  C.  C«  April,  1805. 
MS.  Rep.  Wharf.  Dig.  10. 

But  where  a  broker  had  effected  an  insurance,  and  knew  that  his  employer  acted  as  the 
agent  of  a  third  person  in  procuring  the  insurance,  he  cannot,  as  againsl  the  principal,  re- 
tain the  money  received  from  the  insurer,  for  a  loss,  for  a  debt  due  from  such  agent  to  him- 
self.    Foster  v.  Hoyt,  2  J.  C.  327. 

(198)  An  agent,  who  effects  insurance  for  his  principal,  and  pays,  or  becomes  chargeable 
for  the  premium,  has  a  lien  upon  the  policy,  so  long  as  he  retains  possession  of  it  ;  but,  if 
he  deliver  it  up,  hu  lien  13  discharged.     Cranston  v.  Philadelphia  Ins.  Co.,  b  Binn.  35S. 

"561 


561     Of  Contracts  with  a  Factor,  Broker,  fyc.     [Part  III. 

hands  it  was  deposited  for  that  purpose  by  the  correspondent.  But  the  broker 
has  no  sub-lien  on  the  policy  for  the  general  balance  of  his  own  account  with 
such  correspondent,  if  he  knew  at  the  time  that  the  policy  was  effected  for 
another  person.  (?i)  So,  where  a  principal  gives  notice  to  his  factor  of  an 
intended  consignment  of  a  ship  to  him  for  the  purpose  of  sale,  and  in  conse. 
quence  draws  bills  on  him,  which  the  factor  accepts  ;  and  aftei  wards  the  prin- 
cipal dies,  but  his  executors  direct  the  captain  of  the  ship  to  follow  his  former 
orders,  who  thereupon  delivers  the  ship  into  the  possession  of  the  factor",  who 
sells  the  same  :  it  was  held,  that  the  factor  has  a  lien  upon  the  proceeds  as  well 
for  the  amount  of  money  disbursed  by  him  for  the  necessary  use  of  the  ship 
on  its  arrival,  and  for  the  acceptances  by  him  actually  paid,  as  for  the  amount 
of  his  outstanding  acceptances  not  then  due.(o) 

4.  In  what  Cases  a  Factor  or  Agent  is  not  entitled  to  recover 
for  Commission,  or  Money  paid,  &c] — In  the  case  of  Hereford  v.  Powel,(p) 
it  was  ruled  by  Holt  Ch.  J.  "  That  where  a  factor  abroad  deserves  money  for 
factorage,  he  cannot  bring  an  action  for  his  factorage,  unless  the  principal  refuse 
to  come  to  account ;  and  if  it  appears  that  the  factor  hath  money  in  his  hands, 
he  may  detain,  and  cannot  bring  an  action  for  his  factorage  :  but  if  he  were  direct- 
ed to  vest  all  the  produce  of  the  adventure  in  wines,  or  other  goods,  then  he  might 
brine  an  action  for  his  factorage,  because  he  cannot  detain,  and  hath  no  other  rem- 
edy."(199)  So,  a  factor  or  agent  shall  not  have  any  salary  allowed  him  where 
he  acts  against  the  interest  of  his  principal.^)  (200)  So,  a  broker  who  con- 
tracts with  others  for  the  sale  of  stock  at  a  future  day  by  the  authority  of  his 
principal,  who  afterwards  refuses  to  make  good  the  ^bargain,  cannot,  by  paying 
the  difference  to  such  third  persons,  maintain  an  action  on  an  implied  assumpsit 
against  his  principal  for  the  amount;  such  payment  being  considered  voluntary, 
for  which  no  action  can  be  maintained,  (r)  So,  where  an  agent  pays  money  on 
account  of  his  principal  after  his  authority  has  been  determined,  he  cannot  re- 
cover it  without  an  express  promise  to  pay.(s) 


(n)  Man  v.   Shiffner,  2  East  Rep.  523.  (r)  Vide    Child  v.  Morley,   3   Term  Rep. 

(o)  Hammonds  v.  Barclay,  2  East  Rep.  227.  610. 

(/j)  Holt's  Rep.  467.  (s)  Edmiston  v.    Wright,   1   Campb.  Rep. 

(q)  See  8  Bro.  P.  C.  339.  Svo.  ed.  88. 


(199)  The  mere  relation  of  principal  and  factor  does  not  confine  the  rights  of  the  latter 
to  recover  for  advances,  to  the  fund  only,  deposited  in  his  hands  ;  but  such  advances  are  to 
be  considered  as  made  on  the  joint  credit  of  the  fund  and  the  person.  Burrill  v.  Phillips,  1 
Gallis.  360.  S.  P.  Corliesv.  dimming,  6  Cowen,  181.  But  in  the  latter  case,  itwas  held, 
that  from  the  nature  of  the  contract,  and  the  relation  subsisting  between  the  parties,  resort 
should  be  had  to  the  fund,  in  the  first  instance,  if  it  can  be  made  available. 

Where  commissions  are  allowed  to  the  master  of  a  vessel,  on  sales  and  investments,  he 
will  not  be  entitled  to/ them  on  poods  carried  by  him  to  be  delivered  upon  a  contract  previ- 
ously made  by  the  principal,  and  for  which  he  does  not  receive  payment.  Miller  v.  Living- 
ston, 1  Caines,  349. 

(200)  Where  a  supercargo  was  to  receive  as  his  compensation,  a  gross  sum  out  of  the 
proceeds  of  the  return  cargo,  or  a  part  of  the  cargo,  to  the  same  amount,  on  arrival  at  the 
place  where  the  voyage  was  to  terminate  ;  on  the  return  voyage,  the  vessel  was  compelled 
to  put  into  a  port  of  necessity,  where  the  voyage  was  broken  up,  and  the  vessel  and  cargo 
sold  ;  the  supercargo  is  not  entitled  to  the  stipulated  compensation  ;  but,  it  is  an  insurable 
interest,  for  which  the  insurers  would  be  liable.  Robinson  v.  The  New  York  Ins.  Co.  2  Caines, 
357. 

*562 


Chap.  4.]     Of  Contracts  with  Public  Jge?its,  fyc.        563 


^CHAPTER  IV. 


OF  CONTRACTS  WITH  AGENTS  OF  GOVERNMENT,  OR  OTHER  PUBLIC 
BODIES  ;  OR  WITH  AN  OFFICER  IN  THE  ARMY  ON  BEHALF  OF  A 
REGIMENT,  &c. 

An  officer  appointed  by  government,  treating  as  an  agent  for  the  public,  is 
not  liable  to  be  sued  upon  a  contract  made  by  him  in  that  capacity,(201)  unless 
he  make  an  absolute  and  unqualified  undertaking  to  be  personally  responsi- 
ble. (202)  This  was  determined  in  the  case  of  Macbeath  v.  Haldimand,(a) 
which  was  an  action  upon  promises  against  the  defendant,  as  agent,  for  work 
and  labour.  The  cause  was  tried  before  Bullcr  Just,  and  at  the  trial  a  verdict 
was  found  for  the  defendant,  by  the  direction  of  the  learned  judge,  under  the 
following  circumstances,  which  were  reported  to  the  Court  of  King's  Bench, 
upon  amotion  for  a  new  trial.  In  the  year  1779,  the  defendant  being  governor 
of  Quebec,  appointed  Captain  Sinclair  to  the  command  of  a  fort  called  Michili- 


(«)  1  Term  Rep.  172.  Note,  the  rule  of  whether  the  contract  be  by  parol  or  by  deed. 
law  laid  down  in  this  case,  applies  equally    Vide  Unwin  v.  Wolseley,  lb.  674. 

(201).  See  Sheffieldv.  Watson,  3  Caines,  69.  Walker  v.  Sicartwout,  12  J.  R.  444.  Syne  v. 
Butler,  i  Call,  105.  Tutt  v.  Lads''  Exrs,  3  Call,  233.  Bainbridge  v.'Downie,  6  Mass.  Rep. 
253.  Brown  v.  Austin,  1  Mass  Rep.  20S.  Freeman  v.  Otis,  9  Mass.  Rep.  272.  Dawes  v. 
Jackson,  Id.  490.  Mams  v.  Whittlesey,  3  Conn.  Rep.  560.  Fox  v.  Drake,  8  Cowen,  191. 
Jones  v.  Le  Tvnbe,  3  Dall.  384.  Hodgson  v.  Dexter,  1  Cranch,  345.  Ralhbon  v.  Budlong,  15 
J.  R.  1.  Olney  v.  Wickes,  18  J.  R.  122.  And  so,  where  the  plaintiff's  vessel  was  employed  by 
the  defendant,  a  captain  in  the  navy  of  the  United  States,  in  the  employment  of  the  United 
States,  in  transporting  ordnance  and  military  stores,  during  the  late  war  with  Great  Britain, 
and  by  direction  of  the  defendant,  was  sunk  in  the  harbor  of  O.,  to  prevent  the  ordnance,  &c. 
from  falling  into  the  hands  of  the  enemy,  who  captured  the  place,  raised  the  vessel,  and  car- 
ried her  off;  it  was  held,  that  the  defendant  was  not  liable  to  the  owner,  for  the  value  of  the 
vessel  so  sunk  and  lost.     Bronsan  v.  Woolsey,  17  J.  R.  46. 

(202)  See  Gill  v.  Brown,  12  J.  R.  385.  Swift  v.  Hopkins,  13  J.  R.  313.  If  a  public  agent 
or  officer,  having  made  a  contract  with  an  individual,  in  behalf  of  government,  and  afterwards 
deny  or  misrepresent  the  contract  to  the  government,  and  by  hislnterfcrence  or  misconduct, 
deprive  the  party  of  his  remedy  against  the  government;  or  if  he  receive  money  from  the 
government,  for  the  purpose  of  discharging  such  contract,  he  will  be  personally  responsible. 
Freeman  v.  Otis,  9  Mass.  Rep.  272. 

*563 


563         Of  Contracts  ivith  Public  Agents,  fyc.    [Part.  III. 

makinac,  situated  upon  the  lake  Huron,  in  the  province  of  Canada.     On  the 
17th  August,  1779,   the    defendant  transmitted  certain  instructions  to  Sinclair 
respecting  the  government  of  the  fort,  in  which  he  said,  "  You  are  to  pay  great 
attention  to  the  Indians  resorting  to  Michilimakinac,  or   furnished  with  neces- 
saries from  thence.     Endeavour  to  preserve  them  in  good  humour  ;  and  attach 
them  by  every  means  in  your  power  to  the  king's  interest."     In  a  further  part 
of  the  same  instructions,  he  added,  "  You  will  draw  bills  of  exchange   for  de- 
fraying the  contingencies  incident  to  that  post,  in  the  manner  practised  by  Major 
De  Peyster,   (an  officer  on  whom  that  command  had  been  before  conferred,) 
takino-  care  to  moderate  and  reduce  those  expenses,  as  far  as  can  be  done  with- 
out  injuring  the  king's  service."     And  he  concluded  by  stating,  that  "  a  Mr. 
Macbeath,  who  will  deliver  this  letter,  and  who  has  just  made   application  for  a 
pass,  was  mentioned  to  me  as  a  man  of  known  and  established  integrity ;  and, 
upon  a  more  particular  enquiry,  I  find  that  he  *has  always,  both  here  and  in 
the  upper  country,  merited  that  character.     I  have  proposed  to  him  to  supply 
the  Crown  with  such  quantities  of  Indian  corn  and  grease  as  may  be  wanted 
for  the  necessary  purposes  at  that  post ;  and  likewise  all  other  articles  which 
shall  occasionally  be  wanted  in  the  engineer  department,  which  he  has  under- 
taken to  do  for  10/.  per  cent,  on  the  market  prices  at  the  place  (costs  and  charg- 
es) ;  a  profit  which  appears  to  be  reasonable,  inasmuch  as  it  is  greatly  under 
that  hitherto  charged."       Several  special  orders  were  proved  from  Sinclair  to 
the  plaintiff,  for  supplying  particular  articles,  amongst  which  was  the  following, 
dated  1st  of  August,  1762  :  "  You  will  be  pleased  in  future,  without  any  requi- 
sitions in  form,  to  provide  for  the  different  services  of  the  post,  in  the  manner 
least  expensive  to  government,  and  still  equal  to  the  necessities  of  the  different 
departments."     In  pursuance  of  these  orders,  the  plaintiff  furnished  articles  to 
a  considerable  amount.     But  when  his  bills,  at  the  top  of  which  was  prefixed 
"  Government  debtor  to  George  Macbeath,  for  sundries  paid  by  order  of  Lieu- 
tenant Governor  Sinclair,"  were  seat  to  the  defendant  at  Quebec,  he  made  ob- 
jections  to   several   of  the    articles,   as  being   unreasonable,   and   furnished 
contrary  to  subsequent  instructions.     Afterwards,  on  the  2d  of  July,  1784,  Ma- 
thews (the  defendant's  secretary,)  wrote  the  following  letter  to  Messrs  Dobie 
and  Forsyth,  who  were  agents  for  the  bill  holders  : — 

"  I  am  commanded  by  his  Excellency  General  Haldimand,  to  acquaint  you, 
that,  in  consequence  of  instructions  from  the  Lord's  Commissioners  of  his  Ma- 
jesty's Treasury,  in  answer  to  a  representation  made  by  him  to  their  Lordships, 
concerning  the  bills  drawn  upon  him  by  Lieutenant  Governor  Sinclair,  in  the 
year  1782,  which  he  thought  it  necessary  to  refuse  payment  of,  his  Excellen- 
cy, in  conformity  with  the  offer  which  he  made  to  the  holders  of  the  said  bills  in 
the  year  1782,  is  still  willing  to  pay  such  part  of  the  charges,  for  which  the 
said  bills  were  drawn,  as  at  that  time  appeared  upon  examination  to  be  reason- 
able." 

It  was  admitted  at  the  trial  and  in  court,  that  all  the  accounts  had  been  sub- 

*564 


Chap.  4.]     Of  Contracts  with  Public  Agents,   fyc.         564 

mitted  to  a  board  of  officers  by  the  defendant,  for  them  to  examine  and  report 
what  charges  ought  to  be  allowed,  and  that  the  sum  adjudged  by  them  to  be 
due,  which  fell  very  short  of  the  plaintiff's  demand,  had  been  paid  by  the  trea- 
sury. 

Bailer  J.  after  reporting  the  above  facts,  said,  that  he  had  been  of  opinion 
at  the  trial  that  the  goods  in  question  having  been  supplied  for  the  use  of 
government,  and  the  defendant  not  having  personally  undertaken  to  pay 
the  plaintiff  ought  to  be  nonsuited:  that  it  appeared  to  him  that  the  plaintiff 
had  acted  with  the  defendant  solely  in  the  character  of  Commander  in  Chief, 
considering  him  as  the  agent  of  government :  that  all  the  letters  import- 
ed it  to  be  a  transaction  on  the  part  of  government  ;  and  that  the  accounts 
confirmed  it.  But  the  *plaintiff's  counsel  appearing  for  their  client  when  he  was 
called,  he  left  the  question  to  the  jury,  telling  them  that  they  were  bound  to 
find  for  the  defendant  in  point  of  law.  And  upon  their  asking  him  whether,  in 
the  event  of  the  defendant's  not  being  liable,  any  other  person  was,  he  told 
them  that  wa3  no  part  of  their  consideration  ;  but,  being  willing  to  give  them 
any  information,  he  added,  that  he  was  of  opinion  that  if  the  plaintiff's  demand 
were  just,  his  proper  remedy  was  by  a  petition  of  right  to  the  Crown.  On 
which  they  found  a  verdict  for  the  defendant.  The  rule  for  granting  a  new  trial 
was  moved  for  on  the  ground  of  misdirection  of  the  Judge  upon  two  points. 
First,  that  the  defendant  had,  by  his  own  conduct,  made  himself  personally 
liable,  which  question  should  have  been  left  to  the  jury.  And  secondly,  that 
the  plaintiff  had  no  remedy  against  the  Crown  by  a  petition  of  right,  on  the 
supposition  of  which  the  jury  had  been  induced  to  give  their  verdict. 

Lord  Mansfield  Ch.  J.  declared  that  the  Court  did  not  feel  it  necessary  for 
them  to  give  any  opinion  on  the  second  ground.  His  Lordship  said,  "  that 
great  difference  had  arisen  since  the  revolution  with  respect  to  the  expendi- 
ture of  the  public  money.  Before  that  period,  all  the  public  supplies  were 
given  to  the  king,  who,  in  his  individual  capacity,  contracted  for  all  expenses. 
He  alone  had  the  disposition  of  the  public  money  ;  but  since  that  time,  the 
supplies  had  been  appropriated  by  parliament  to  particular  purposes,  and  now 
whoever  advances  money  for  the  public  service  trusts  to  the  faith  of  parliament. 
That  according  to  the  tenor  of  Lord  Somers's  argument  in  the  banker's  case,f 
though  a  petition  of  riglrt  would  lie,  yet  it  would  probably  produce  no  effect. 
No  benefit  was  ever  derived  from  it  in  the  banker's  case ;  and  parliament  was  after- 
wards obliged  to  provide  a  particular  fund  towards  the  payment  of  those  debts. 
Whether,  however,  this  alteration  in  the  mode  of  distributing  the  supplies  had 
made  any  difference  in  the  law  upon  this  subject,  it  was  unnecessary  to  de- 
termine ;  at  any  rate,  if  there  were  a  recovery  against  the  Crown,  application 
must  be  made  to  parliament,  and  it  would  come  under  the  head  of  supplies  for 
the  year."  And  upon  the  first  point,  the  Court  determined,  that  the  defendant 
having  contracted  with  the  plaintiff  merely  as  the  agent  of  government,  was  not 
personally  liable.     And  his   lordship   added,  "  The  only  question   before   the 


t  Vide  Vol.  II.  of  State  Trials,  59. 
69  *565 


565  Of  Contracts  ivith  Public  J  gents,  fyc-     [Part  III. 

Court  is,  whether  the  defendant  be  liable  or  not  in  this  action  ?  if  he  be,  the 
plaintiff  must  recover  ;  if  not,  no  consideration  respecting  the  plaintiff's  remedy 
against  any  other  party  can  induce  the   Court  to  make  him  so.     There  is  no 
colour  to  say  that  he  is  liable  in  his  character  of  Commander  in  Chief.     In  a 
late  case   which  was  tried  before  me,  where  one   Savage  brought  an  action 
against  Lord  North,  as  First  Lord  of  the  Treasury,  in  order  that  he  might  be 
reimbursed  the  *expenses  which  he  had  incurred  in  raising  a  regiment  for  the 
service  of  Government,  I   held  that  the  action  did  not  lie.     So,  in  another  case 
of  Lutterloh  against  Halsey,  which  was  an  action  brought  against  the  defendant, 
who  was  a  commissary,  for  the  supply  of  forage  for  the  army,  and  by  whom 
the  plaintiff  had  been  employed  in  that  service,  the   commissary  was  held  not 
liable.     In  the  present  case  it  was  notorious  that  the  defendant  did  not  person- 
ally contract ;  the  plaintiff  knew  at  the  time  that  he  furnished  the  stores,  that 
they  were  for  the  use  of  government ;  and  he  afterwards  made  government  debt- 
or in  his  bills.     But  it  has  been  urged  that  the  defendant  made  himself  liable 
after  the  debt  was  contracted.     In  my  opinion  there  is  no  ground  for  such  an 
argument  :    the  evidence   does  not  warrant  it.      Then  it  was  objected,  that 
whether  the  defendant  had   made  himself  liable   or  not,   was  a  question  which 
ought  to  have  been  left  to  the  jury  to  decide.     But  there  was  no  evidence  which 
was  proper  for  their   consideration  ;  for  the   evidence  consisting  altogether  of 
written  documents  and  letters,  which  were  not  denied,  the  import  of  them  was 
matter  of  law  and  not  of  fact." 

So,  a  captain  of  a  troop  is  not  personally  liable  for  meat  or  forage  supplied 
for  his  troop  during  his  absence   on  duty,  though  ordered    by  his  clerk,  unless 
he  actually  receives  the  subsistence  money  from   Government,  or  makes  an 
absolute  promise  to  be   answerable  personally,  (b)     So,   in  the   case   of  Rice 
v.  Shute,{c)  it  was   determined  that  the  captain  of  a  troop,  for  which    forage 
was  furnished  by  the   orders    of   a  clerk   appointed    by  such  captain,  is  not 
liable  in  an  action  for  money  had  and  received   for  such  forage,  though  present 
with  the  troop   at  the  time  ;  it  not  appearing  that  he  had  received   any  money 
for   this  purpose  from   the   paymaster,  to  whom   it  is  issued   by  Government, 
and   upon  whom   the  captain    is  entitled  to  draw  for  a  certain  sum,   regulated 
by  the  returns  of  the   preceding  month.     It  is,  however,   reported,  that  there 
was  another  case  of  Rice  v.  Everitt,(d)  determined   at  the  same   time,   which 
was  an  action  brought   by  the  same   plaintiff  against  the  colonel  of  the  same 
regiment,  for  forage  furnished  to  his  own  particular  troop.     The  evidence  was 
in  general  the  same  as  in  the  other  case  :  but  here  it  appeared  that  though  the 
defendant  had  not  drawn  upon   the  paymaster  of   the   regiment  for  the  par- 
ticular  sum  in  demand,  and  so  he  could    not   be   said   to  have  received    that 
sum  to  the   plaintiff's  use,  yet  the  defendant  being  indebted  to  the  paymaster 
on  the  balance  of  his  own  private  account  with  him  to  the  amount  of  two-thirds 
of  the  plaintiff 's  demand,  and  being  also  surety   for  the  paymaster  to  Govern- 


(b)  Myrtle  v.  Beaver,  1  East  Rep.  135.  (V)  1  East  Rep.  533.  n. 

(c)  1  East  Rep.  579. 
*566 


Chap.  4.J     Of  Contracts  with  Public  Agenls>  fyc  567 

ment,  and  the  paymaster  having  absconded  in  a  state  of  insolvency,  *the 
Court  refused  to  set  aside  a  verdict  recovered  by  the  plaintiff  for  the  amount  of 
his  debt,  as  the  defendant  was  liable,  in  some  shape  or  other,  for  the  paymas- 
ter's default,  and  justice  had  upon  the  whole  been  done  by  the  verdict. 

So,  a  magistrate  is  not  liable  to  pay  for  plans  and  estimates  for  building  a 
county  gaol  upon  an  employment  by  him  as  one  of  a  committee  appointed  under 
an  order  of  sessions,  (e) 

But  where  an  act  of  parliament  was  passed  for  making  a  river  navigable,  giv- 
ing power  to  certain  commissioners  to  raise  and  borrow  money  upon  the  tolls  of 
the  navigation,  the  acting  commissioners  gave  orders  at  their  meetings  for  work 
to  be  done  in  making  cuts,  &c.  The  work  being  completed,  the  commissioners 
declined  paying,  alleging  that  they  had  no  trust-money  left.  The  plaintiff  filed 
a  bill  in  Chancery  against  all  the  acting  commissioners  :  and  the  Court  held,  the 
commissioners,  who  acted  under  the  trust,  to  be  personally  liable  to  all  the  con- 
tracts, as  well  those  which  were  made  at  the  meetings  when  they  were  not  pres- 
ent, as  at  those  when  they  were.  It  was  also  said  by  the  Court  that  the  com- 
missioners, having  power  to  borrow  money,  ought  to  take  care  to  be  provided : 
that  the  workmen  who  engaged  to  do  the  work  could  not  know  the  state  of  the 
fund,  nor  was  it  their  business  to  enquire  ;  they  gave  credit  to  the  commission- 
ers ;  the  plaintiff  could  not  be  considered  as  giving  credit  to  the  success  of  the 
undertaking.  (/) 

So,  where  the  commissioners  of  a  navigation  act  entered  into  an  agreement 
with  an  engineer,  they  were  holden  to  be  personally  liable,  (g) 

So,  where  A.  agreed  with  B.  and  C.  to  pave  their  streets  ;  and  they,  on  be- 
half of  the  parish,  agreed  to  pay  him  ;  and  the  work  being  done  according  to  the 
agreement,  A.  filed  a  bill  in  Chancery  against  B.  and  C,  and  it  was  held  that 
they  were  liable,  and  must  take  their  remedy  over  against  the  rest  of  the  pa- 
rish, (h) 


(«)  Tuck  v.  Ruggles,  5  Eap.  Rep.  237.  (g)  Ibid. 

(/)  Horsley  v.  Bell,  Ambl.  769.   772.  But         (li)  Myriel  v.  HymondsoldK  Hardr.  203 
tee  Mien  v.   Waldegrave,  8  Taunt.  Rep.  566. 


*567 


568         Of  Contracts  with  Common  Carriers  [Part  III. 


•CHAPTEK  V. 


OF  CONTRACTS  WITH  COMMON  CARRIERS,  WHARFINGERS,  AND 
WAREHOUSEMEN:  AND  THEIR  RESPECTIVE  LIABILITIES  IN  CASE 
OF  LOSS  OR  DAMAGE  OF  GOODS  ENTRUST  ED  TO  THEIR  CARE. 


A   common   carrier  is  a  person  who  carries   goods  for  hire  either  by  land  or 
by  water ;  and  as  such  he  is,  by  the  common  law,  responsible  for  any  loss 
or  damage  which  may  happen  to  them  whilst  under  his  care  ;  and  he  is  excus- 
ed in  no  case  except  where  the  loss  or  damage  happen  either    from  inevitable 
accident,   or,    as    it  is   not  unfrequently    called,   the     act  of  God  ;  or,    of  the 
king's  enemies.  (<z)(203)  Masters  and  owners  of  ships  and  other  vessels,  propri- 
etors of  stage  coaches,    waggons,  &  c.    come  under   the  denomination  of  com- 
mon carriers,    and    are   chargeable    on  the  general    custom  of  the   realm,    for 
their  faults  and  miscarriages  in  the  loss  or  damage  of  goods  entrusted   to    their 
care.(&)(203)   So,  if  the  proprietor  of  a  stage-coach  carries  goods  as  well  as  pas- 
sengers for  hire,  he  shall  be  deemed  a  common  carrier,  and  liable  for  the  loss  of 
goods,  &c.(c)  (204)   But  a  hackney-coachman  is  not  a  common  carrier  within  the 
custom  of  the  realm,  and  cannot  be  charged  with  the  loss  of  a  passenger's  goods, 
except  there  be  an  express  agreement,  and  money  paid  for  the  carriage  of  the 
goods,  (d)  So,    the   postmaster-general    doth   not  come    under    the  denomina. 


(a)  Rol.  Abr.  2.  4  Co.  84.  2  Ld.  Raym. 
918.  1    Term  Rep.  27. 

(6)  1  Salk.  249.  Bac.  Abr.  tit.  Carriers, 
A. 


(c)  2   Show.    128.     1   Salk.  282.   pi.   11.; 
and  see  2  Bos.  &.  Pul.  419.  416. 

(d)  Com.  Rep.  25. 


(203)  See  Kemp  v.  Coughtry,  1 1  J.  R.  107.  Coll  v.  M 'Mechen,  6  J.  R.  160.  Elliolt  v. 
Rossell,  10  J.  R.  1.  Murphy  v.  Slaton,  3  Munf.  239.  Dicight  v.  Brcicster,  1  Pick.  50. 
M'Clures  v.  Hammond,  1  Bay,  96. 

(204)  The  proprietors  of  a  stage-coach,  carrying  parcels  not  belonging  to  passengers,  are 
liable,  as  partners,  for  the  loss  of  such  parcels  ;  and  the  clause,  '•'  All  baggage  at  the  risk  of 
the  owners,"  usually  inserted  in  their  advertisements  of  the  route,  fare,  &c.  will  not  apply  to 
such  parcels  :  And  their  liability  will  be  the  same,  whether  the  driver  be  informed,  that  a 
package  contains  money,  or  papers  equally  valuable.     Dwight  v.  Brewster,  1  Pick.  50. 

*568 


Chap.  5.]  For  the  Safe  Delivery  of  Goods.  56S 

lion  of  a  common  carrier :  he  hath  no  hire  ;  enters  into  no  contract.  The  post-of- 
fice is  a  branch  of  revenue,  and  a  branch  of  police  created  by  act  of  parliament  ; 
the  salary  annexed  to  the  office  of  postmaster  is  for  no  other  consideration  than 
the  trouble  of  executing  it.  He  is  therefore  not  liable  for  any  constructive 
negligence,  (e)  (205)  It  has  been  observed, (/)  that  rigorous  as  this  rule  may 
seem,  and  hard  as  it  may  be  in  one  or  two  particular  instances,  yet  it  is  •found- 
ed on  the  great  principle  of  public  policy  and  convenience,  to  which  all  private 
considerations  ought  to  yield ;  for  the  public  are  obliged  to  rely  on  the  good 
conduct  of  carriers,  whose  education  and  morals  are  usually  none  of  the  best, 
and~\vho  might  have  frequent  opportunities  of  associating  with  wicked  and  dis- 
honest persons,  while  the  injured  person  could  seldom  or  never  obtain  legal 
proof  of  such  combinations,  or  even  of  their  negligence,  if  no  actual  fraud  had 
been  committed  by  them,  to  the  infinite  injury  of  commerce,  and  extreme  in- 
convenience of  society.  Accordingly,  it  is  laid  down  in  the  books, (g)  that 
though  a  common  carrier  be  robbed  of  the  goods  delivered  to  him,  he  shall  an- 
swer for  the  value  of  them. (206)  And  this  liability  arises  at  common  law  from 
the  nature  of  the  engagement  or  contract  which  he  impliedly  enters  into  when 
he  receives  goods  to  be  delivered  for  hire.  He  is  also  considered  in  the  nature 
of  an  insurer,  and  is  liable  for  the  loss  of  goods  occasioned  by  fire,  without 
any  negligence  in  him  or  his  servants.  This  point  was  settled  in  the  case  of 
Forward  v.  Pitlard,(h)  which  was  an  action  of  assumpsit  against  the  defen- 
dant as  a  common  carrier,  for  not  safely  carrying  and  delivering  the  plaintiff's 
goods.  A  verdict  was  found  for  the  plaintiff  subject  to  the  opinion  of  the  Court 
of  King's  Bench  on  the  following  case  :  "  The  defendant  was  a  common  car- 
rier  from  London  to  Shaftsbunj.  That  on  Thursday  the  14th  of  October,  1784, 
the  plaintiff  delivered  to  him  on  Weykill  twelve  pockets  of  hops  to  be  carried 


(e)  Lane    v.    Cotton,  1    Ld.  Raym.    646.  (g)  1  Inst.  89.   a.  Mo.  462.     1   Rol.  Abr. 
Whitefield    v.  Lord    Le    Denpenccr,    Cowp.  2.  C. 

754.  (/i)  1  Term.  Rep.  27.     Sec   also  Hyde  v. 

(f)  Vide  1  Salk.  143.     2  Ld.  Raym.  913.  The  Trent  and  Mersey  Navigation  Company,* 
Jones's  Law  of  Bailments,  103,  4.  95,  6.  Term  Rep.  389. 


(205)  See  Dunlop  v.  Muroe,  7Cranch,  242.  The  owners  of  a  steam  boat,  carrying  goods 
for  hire,  are  liable  as  common  carriers,  in  case  of  a  loss.  Mien  v.  Seioall,  2  Wend.  327. 
And  so  are  boatmen.  Harrington  v.  Lyle.i,  2Nott&.  M'Cord,  88.  But  where  a  person  who 
receives  and  forwards  goods,  taking  upon  himself  all  the  expences  of  tbe  transportation,  for 
which  he  is  paid  a  compensation  by  the  owners,  but  -who  has  no  concern  in  the  vessel  by 
which  they  are  transported,  or  interest  in  the  freight,  is  not  a  common  carrier.  Hoherts  v. 
Turner,  12  J.  R.  232.  The  law  regulating  the  duty  and  liability  of  common  carriers,  does 
aot  apply  to  the  carrying  of  intelligent  beings,  for  instance,  negro  slaves.  A  slave,  in  (he 
nature  of  things,  and  in  his  character,  resembles  a  passenger,  not  a  package  of  goods. 
Boyce  v.  Jlnderson,  2  Peters,  150.  £v>,  if  a  person  once  a  common  carrier,  but  who  has  aban- 
doned the  business,  send  his  servant  with  goods  belonging  to  a  particular  person,  from  one 
place  to  another,  with  particular  instructions  not  to  receive  the  goods  of  any  other  person 
for  transportation,  such  person  will  not  be  liable  as  a  common  carrier,  in  case  of  the  loss  or 
embezzlement  of  the  goods.     Satterlee  v.  Groat,  1  Wend.  272. 

(206)  The  master  and  owners  of  a  vessel  arc  answerable  for  goods  which  they  have  un- 
dertaken to  carry,  if  stolen  or  embezzled  by  the  crew  or  any  other  person  ;  though  no  fault 
or  negligence  be  imputable  to  them.  Schiefflin  v.  Harvey,  6  J.  R.  170.  Watkinson  v.  Laugh- 
ton,  3' J.  R.  164.  2d  edit.     Kemp  v.  Coughtry,  11  J.  R.  107. 

*56Q 


569         Of  Contracts  with  Common  Carriers       [Part  III. 

by  him  to  Andover,  and  to  be  by  him  forwarded  to  Shaflsbury  by  hi3  public 
road  waggon,  which  travels  from  London  through  Andover  to  Shaflsbury. 
That  by  the  course  of  travelling,  such  waggon  was  not  to  leave  Andover  till 
the  Saturday  evening  following.  That  in  the  night  of  the  following  day  after 
the  delivery  of  the  hops,  a  fire  broke  out  in  a  booth  at  the  distance  of  one  hun- 
dred yards  from  the  booth  in  which  the  defendant  had  deposited  the  hops,  which 
burnt  for  some  time  with  unextinguishable  violence,  and  during  that  time  com- 
municated itself  to  the  said  booth  in  which  the  defendant  had  deposited  the 
hops,  and  entirely  consumed  them  without  any  actual  negligence  in  the  defen- 
dant. That  the  fire  was  not  occasioned  by  lightning."  And  the  general  ques- 
tion in  this  case  was,  whether  a  carrier  was  liable  for  the  loss  of  goods  occa- 
sioned by  fire,  without  any  negligence  in  him  or  his  servants  ?  And  upon  this 
question  Lord  Mansfield  Ch.  J.  delivered  the  unanimous  opinion  of  the  Court, 
that  the  carrier  was  liable.  He  said  :  "  It  appears  from  all  the  cases  for  one  hun- 
dred years  back,  that  there  are  events  for  which  the  carrier  is  liable  indepen- 
dent of  his  contract.  By  the  nature  of  his  contract,  he  is  liable  for  all  due  care 
and  diligence  ;  and  for  any  negligence  he  is  suable  on  his  contract.  But 
there  is  c  *further  degree  of  responsibility  by  the  custom  of  the  realm,  that  is, 
by  the  common  law,  a  carrier  is  in  the  nature  of  an  insurer.  It  is  laid  down 
that  he  is  liable  for  every  accident,  except  by  the  act  of  God,  or  the  King's 
enemies.  Now  what  is  the  act  of  God  1  I  consider  it  to  mean  something  in 
opposition  to  the  act  of  man :  for  every  thing  is  the  act  of  God  that  happens 
by  his  permission:  every  thing  by  his  knowledge.  But  to  prevent  litigation, 
eollusion,  and  the  necessity  of  going  into  circumstances  impossible  to  be  un- 
ravelled, the  law  presumes  against  the  carrier,  unless  he  shows  that  it  was  done 
by  the  King's  enemies,  or  by  such  act  as  could  not  happen  by  the  intervention  of 
man,  as  storms,  lightning,  and  tempests.  In  this  case  it  does  not  appear  but 
that  the  fire  arose  from  the  act  of  some  man  or  other.  It  certainly  did  arise 
from  some  act  of  man  ;  for  it  is  expressly  stated  not  to  have  happened  by  light- 
ning. The  carrier  therefore,  in  this  case,  is  liable,  inasmuch  as  he  is  liable 
for  inevitable  accident."(207) 

But  in  the  case  of  Garside  v.  The  Proprietors  of  the  Trent  and  Mersey 
Navigation,  (i)  where  a  common  carrier  between  A.  and  B.  was  employed  to 
carry  goods  from  A.  to  B.  to  be  forwarded  to  C. ;  the  goods  were  safely  deliv- 
ered by  him  at  B.,  and  there  put  into  his  warehouse,  until  they  could  be  deliv- 
ered to  another  carrier  from  B.  to  C.  ;  but  whilst  the  goods  were  in  the  ware- 

(i)  4  Term  Rep.  5S1.  Vide  the  case  of  Hyde  v.  The  Trent  and  Mersey  Navigation 
Company,  5  Term  Rep.  389. 

(207)  What  shall  be  deemed  the  act  of  God,  in  a  legal  sense,  can  more  easily  be  deter- 
mined by  reference  to  judicial  decisions,  in  particular  cases,  than  from  any  general  reason- 
ing on  the  subject.  Thus,  where  a  vessel  was  beating  up  the  Hudson,  against  a  light  and 
variable  wind,  and  being  near  shore,  and  whilst  changing  her  tack,  the  wind  suddenly  failed, 
in  consequence  of  which,  she  ran  aground  and  sunk  ;  it  was  held,  that  the  sudden  failure  ot 
the  wind  was  the  act  of  God  (inevitable  accidents,)  and  excused  the  earner,  there  being  no 
negligence  on  his  part.     Colt  v.  M'Mechen,  6  J.  R.  160. 

*570 


Chap.  5.]     For  the  Safe  Delivery  of  Goods.  570 

house,  they  were  destroyed  by  an  accidental  fire  ;  the  Court  of  King's   Bench 
determined,  that  whilst  the  goods  remained  in  the  warehouse  the  carrier  was  to 
be  considered  merely  as  a  warehouseman,  and  therefore  not  responsible  for  the 
loss. (208)     And  Lord  Kenyon  Ch.  J.  said,  "  The  case  of  a  carrier  stands  by 
itself  upon  peculiar  grounds  ;  he  is  held  responsible  as  an  insurer,  and  the  rea- 
son given  in  the  books    (whether  well  or  ill   founded  is  immaterial  here)   is  to 
prevent  fraud.     But  I  do  not  see  how  we   can  couple  the  character  of  the  car- 
rier with  that  of  the  warehouseman,  in  which  last  the  defendants  are  not  liable 
here,  they  not  having  been  guilty  of  laches."      And  Buller  Just,  observed, 
"  The  keeping  of  the  goods  in  the  warehouse  is  not  for  the  convenience  of  the 
carrier,  but  of  the  owner  of  the  goods  ;  for  when  the   voyage  to  Manchester  is 
performed,  it  is   the  interest  of  the  carrier  to  get  rid  of  them  directly  ;    and  it 
was  only  because  there  was  no  person  ready  at  Manchester  to  receive  these 
goods  that  the  defendants  were  obliged  to  keep  them." 

A  delivery  of  goods   to   a  common  carrier,  who   accepts  a  box  with  goods 
and  money  in  it,   is  liable  to   the  full  extent  of  the  loss  or  damage  happening 
to  them,  though  he  be  ignorant  of  its  contents  ;  unless  he  make  a  special  ac- 
ceptance.    Thus,  in  the  case  of  Kenrig  v.  Eggleston,(i)   which  was  an  action 
upon  the  case  against  a  country  carrier  for  not  delivering  *a  box  with  goods  and 
money  in  it.     The  evidence  was,  that  the   plaintiff  delivered    the    box   to  the 
carrier's  porter,  whom  he  appointed  to  receive  goods  for  him,  and  told  the  por- 
ter that  there  was  a  book  and  tobacco  in  the    box,  and   in  truth   there  was  an 
hundred  pounds  in  it  besides.     And  it  was  agreed  by  the  counsel,  and  given  in 
charge  to  the  jury,  that  if  a  box  with  money  in  it  be  delivered  to  a  carrier,  he 
is  bound  to  answer  for  it  if  he  be  robbed,  although  it  was  not  told  him  what  was 
in  it.    And  so  it  was  ruled  in  one  BarcrofCs  case,  as  Rolle  said,  where  a  box  of 
jewels  was  delivered  to  a  ferry-man,  who  knowing  not  what  was  in  it,    and  be- 
ing in  a  tempest,  threw  it  overboard  into  the  sea,  and  resolved  that  he  should  an- 
swer for  it.     And  Roll  Just,  directed  the  jury,  "  That  although  the  plaintiff  did 
tell  him  some  things  in  the  box  only,  and  not  of  the  money,  yet  he  must  answer 
for  it ;  for  he  need  not  tell  the  carrier  all   the  particulars   in   the  box.     But  it 
must  come  on  the  carrier's  part  to  make  special    acceptance.     But  in   respect 
of  the  intended  cheat  to  the  carrier,  he  told  the  jury  they    might   consider   him 
in  damages."     But  in  the  case  of  Sir  Joseph  Tyly  and  others  v.   Morrice,(k) 
two  bags  of  money  sealed  up  were  delivered  to  the  defendant's  book-keeper  ; 
the  plaintiff's  servant  told  him  that  it  was  2001.,  and  desired  a   receipt  for    the 
money ;  thereupon  the  book-keeper  gave  a  receipt   for   his  master  to  this    ef- 
fect :   "  Received  of,  &c.  two  bags  of  money  sealed  up,  said  to   contain  200/., 
which  I  promise  to  deliver  on  such  a  day  at  Exeter  unto  T.    Davies,  he  to  pay 
10s.   per  cent,  for   carriage    and   risk."      The    carrier   was   robbed    of  this 


(t)  Aleyn,  93.  (k)  Carth.  85. 


(203)  See  Piatt  v.  Hibbard,  7  Cowen,  497.     rfckley  v.  Kellogg,  8  Cowen,  223. 

*571 


571  Of  Contracts  with  Common  Carriers      [Part  III. 

and  other  money  on  Hounslow  Heath  in  the  night  time,  but  he  paid  200/.  to 
Dames  at  Exeter.  And  now  an  action  was  brought  against  him  in  common 
form  upon  the  custom  of  England,  wherein  the  plaintiffs  declared,  that  on  such 
a  day  and  place  they  had  delivered  unto  the  defendant  450/.  to  be  carried  from 
London  to  Exeter,  &c.  ;  and  at  the  trial  it  was  proved,  that  there  was  full  450/. 
in  gold  and  silver  contained  in  those  two  bags  at  the  time  they  were  delivered 
to  the  carrier  for  200/.  And  the  question  was,  whether  the  carrier  should  an- 
swer for  the  whole  money  ?  Holt  Ch.  J.  was  of  opinion  that  he  should  answer 
for  no  more  than  200/.,  (which  was  acknowledged  that  he  had  paid  to  Davies,) 
because  in  this  case  there  was  a  particular  undertaking  by  the  carrier  for  the 
carriage  of  200/.  only,  and  his  reward  was  to  extend  no  farther  than  that  sum, 
and  it  is  the  reward  which  makes  the  carrier  answerable  ;  and  since  the  plain- 
tiffs had  taken  this  course  to  defraud  the  carrier  of  his  reward,  they  had  there- 
by barred  themselves  of  that  remedy  which  is  founded  only  on  the  reward. 
So  the  jury  was  directed  to  find  for  the  defendant. 

So  a  carrier  is  not  answerable  for  the  loss  of  goods  from  a  risk  to  which  the 
customer,  when  he  delivered  them,  knew  that  they  were  likely  *to  be  exposed, 
and  of  which  circumstance  he  did  not  inform  the  carrier.  (/) 

So,  in  the  case  of  Gibbon  v.  Paynton  and  another, (m)  which  was  an  action 
against  the  Birmingham  stage-coachman,  for  100/.  in  money,  sent  from  Birming- 
ham to  London  by  his  coach,  and  lost.    It  was  hid  in  hay  in  an  old  nail-bag,  the 
bag  and  the  hay  arrived  safe  :  but  the  money  was  gone.     The   coachman  had 
inserted  an    advertisement  in    a  Birmingham   newspaper,    with    a    nota  bene, 
"  That  the  coachman  would  not  be   answerable  for   any  money   or  jewels,  or 
other  valuable  goods,  unless  he  had  notice  that  it  was  money  or  jewels,  or  valua- 
ble goods,  that  was  delivered  to  him  to   be  carried."     He  had    also    distributed 
hand-bills  of  the  same  import.     It  was  notorious  in  that  country,  that    the  price 
of  carrying  money    from  Birmingham  to   London  was  3r/.  in  the    pound,  the 
plaintiff  was  a  dealer  at  Birmingham,  and  had  frequently  sent  goods  from  thence : 
it  was  proved  that  he  had  been  used  for  a  year  and  a  half  to  read  the  newspaper 
in  which  this  advertisement  was  published ;  though  it  could  not  be  proved  that 
he  had  ever  actually  read  or  seen  the  individual  paper  wherein  it  was  inserted. 
A  letter  of  the  plaintiff 's  was   also  produced,   from  whence  it  manifestly  ap- 
peared that  he  knew  the  course  of    this  trade,  and  that  money  was  not   carri- 
ed from  that  place  to  London  at  the  common  and  ordinary  price  of  the  carriage 
of  other  goods  :  and  it  likewise  appeared  from  this  letter,  that  he  was  conscious 
that  he  could  not  recover  by  reason  of  his   concealment.     The  jury    found   a 
verdict  for  the  defendant.     But  the  plaintiff  afterwards  moved   for  a  new  trial  ; 
the  Court,  however,  were  clearly  of  opinion,  that  the  verdict  was  right,  and 
therefore  refused  the   rule.     Lord  Mansfield  Ch.  J.  distinguished  between  the 
case  of  a  common  carrier,  and  that  of  a  bailee,  and  said :  "  The  latter  is  only 
obliged  to  keep  the  goods  with  as  much  diligence  and  caution  as  he  would  keep 


(l)Edwards  v.  Sherratt,  1  East  Rep.  604. 


(m)  4  Burr.  2298. 


"572 


Chap.  5.]  For  the  Safe  Delivery  of  Goods.  572 

his  own  :  but  a  common  carrier,  in  respect  of  the  premium  he  is  to  receive, 
runs  the  risk  of  them,  and  must  make  good  the  loss,  though  it  happen  without 
any  fault  in  him  ;  the  reward  making  him  answerable  for  their  safe  delivery. 
This  action  is  brought  against  the  defendant  upon  the  foot  of  being  a  common 
carrier.  His  warranty  and  insurance  is  in  respect  of  the  reward  he  is  to  receive  : 
and  the  reward  ought  to  be  proportionable  to  the  risk ;  if  he  makes  a  greater 
warranty  and  insurance,  he  will  take  greater  care,  use  more  caution,  and  be  at 
the  expence  of  more  guards,  or  other  methods  of  security  :  and  therefore 
he  ought,  in  reason  and  justice,  to  have  a  greater  reward.  Consequently,  if 
the  owner  of  the  goods  has  been  guilty  of  a  fraud  upon  the  carrier,  such  fraud 
ought  to  excuse  the  carrier,  and  here  the  owner  was  guilty  of  fraud  upon  him  : 
the  proof  of  it  is  over-abundant.  The  plaintiff  is  a  dealer  at  Birmingham, 
the  price  of  the  carriage  of  money  *from  thence  is  notorious  in  that  place  : 
it  is  the  rule  of  every  carrier  there  ;  it  is  fairly  presumed  that  a  man  conversant 
in  a  trade  knows  the  terms  of  it ;  therefore  the  jury  were  in  the  right,  in  pre- 
suming that  this  man  knew  it ;  the  advertisement  and  hand-bills  were  circum- 
stances proper  to  be  left  to  the  jury,  the  plaintiff's  having  been  used,  for  a  year 
and  a  half,  to  read  this  newspaper  is  a  strong  circumstance  for  the  jury  to 
ground  a  presumption  that  he  knew  of  the  advertisement;  then  his  own  letter 
strongly  infers  his  consciousness  of  his  own  fraud,  and  that  he  meant  to  cheat 
the  carrier  of  his  hire  ;  therefore,  I  entirely  agree  with  the  jury  in  their  verdict." 
And  Yates  Just,  said,  "  A  carrier  may  make  a  special  acceptance  ;  and  that  this 
was  a  special  acceptance.  By  the  general  custom  of  the  realm,  a  common  car- 
rier insures  the  goods  at  all  events  :  and  it  is  right  and  reasonable  that  he 
should  do  so  :  but  he  may  make  a  special  contract ;  or  he  may  refuse  to  con- 
tract in  extraordinary  cases  but  upon  extraordinary  terms." 

And  accordingly  in  the  case  of  Clay  v.  Willan  and  others, («)  where  it  ap- 
peared that  the  defendants  were  proprietors  of  a  stage  coach,  by  which  the 
plaintiff  sent  a  quantity  of  light  guineas  to  be  carried  from  Wakefield  to  Lon- 
don, 2s.  were  paid  for  the  carriage,  and  2d.  for  booking ;  and  the  following  were 
the  printed  terms  on  which  the  defendants  performed  their  business  :  "  Willan 
and  Co.  humbly  beg  leave  to  inform  their  friends  and  the  public,  that  cash, 
plate  and  jewels,  writings,  or  any  such  kind  of  valuable  articles,  will  not  be 
accounted  for  if  lost,  of  more  than  51.  value,  unless  entered  as  such,  and  a 
penny  insurance  paid  for  each  pound  value,  when  delivered  to  the  book-keeper, 
or  other  person  in  trust,  to  be  conveyed  by  any  carriage  that  inns  at  the  above 
inn.''  The  parcel  was  lost,  and  the  action  was  brought  for  the  amount.  But 
at  the  trial,  the  plaintiff  was  nonsuited,  it  being  proved  that  the  person  by 
whom  he  sent  the  parcel  to  the  inn,  knew  of  the  above  terms,  but  had  not 
discovered  the  contents  of  the  parcel  to  the  book-keeper,  nor  paid  for  them 
as  valuables.  And  upon  a  rule  to  show  cause  why  the  nonsuit  should  not  be 
set  aside,  and  a  verdict  entered  for  the  plaintiff,  on  the  ground  that  he  was  en- 


(m)  1  H.  Bl.  29S. 
70  *573 


573        Of  Contracts  with  Common  Carriers        [Part  III. 

titled  to  recover  as  far  as  5/.  by  the  printed  conditions  ;  the  Court  declared, 
that  the  sense  of  the  printed  conditions  seemed  to  be,  that  the  defendants 
were  not  liable  to  any  extent,  unless  the  parcel  had  been  entered  and  paid 
for  as  valuable ;  and  therefore  the  rule  for  setting  aside  the  nonsuit  was  dis- 
charged. 

So,  in  the  case  of  Izett  v.  Mountain, (o)  where  the  notice  was  in  these  words  : 
"  The  proprietors  of  coaches  from  this  inn  will  not  be  accountable  for  any  par- 
cels, &c.  of  more  value  than  5/.  unless  entered  as  such,  and  paid  for  according- 
ly ;"  it  was  determined,  in  an  action  against  the  carrier,  that  t  he  plaintiff  was 
not  entitled  to  recover  any  thing. 

*So,  in  the  case  of  Nicholson  and  another  v.  Willan  and  another,  (p)  where  it 
appeared,  that  the  defendants  were  proprietors  of  two  coaches  travelling 
from  Leeds  through  Nottingham,  to  London,  the  one  a  mail  coach,  the  other  a 
heavy  coaeh  which  went  out  six  hours  later  every  day  than  the  mail  coach. 
The  parcel  in  question,  containing  goods  to  the  value  of  58/.  was  (as  a  witness 
for  the  plaintiffs  proved,  and  which  the  jury  found  to  be  true,)  delivered  and 
accepted  to  be  carried  by  the  mail  coach.  It  appeared,  however,  to  have  been 
booked  to  go  by  the  heavy  coach,  and  to  have  been  afterwards  lost,  but  whether 
in  a  course  of  conveyance  by  the  heavy  coach,  or  out  of  the  warehouse, 
or  how  otherwise,  did  not  appear.  It  was  proved,  that  the  defendants  had  for 
some  time  before  put  up  an  advertisement  on  a  board  in  their  office  at  Notting- 
ham, and  of  which  the  plaintiffs  were  also  proved  to  have  had  notice,  in  the 
following  terms  :  "  Take  notice,  that  the  proprietors  of  coaches  transacting 
business  at  this  office  will  not  be  accountable  for  any  passenger's  luggage,  mon- 
ey, plates,  jewels,  watches,  writings,  goods,  or  any  package  whatever,  (if  lost 
or  damaged,)  above  the  value  of  5/.  unless  insured  and  paid  for  at  the  time  of 
delivery,  and  demanded  in  one  month,  after  such  damage  is  sustained."  Lord 
Ellenborough  Ch.  J.  delivered  the  judgment  of  the  Court  upon  this  case  in  fa- 
vour of  the  defendants.  He  said,  "  On  the  part  of  the  plaintiffs  it  was  con- 
tended that  they  were  entitled  to  recover  the  58/.  the  value  of  the  goods, 
notwithstanding  the  notice  given  by  the  advertisement,  which  excludes 
from  the  carrier's  general  responsibility  for  the  same  at  common  law,  all  goods 
above  the  value  of  51.  unless  the  terms  therein  specified,  namely,  of  insuring 
and  paying  for  the  goods  at  the  time  of  delivery,  should  be  complied  with, 
and  which  was  not  done  in  this  instance.  The  ground  on  which  they  so  con- 
tended was  that  the  loss  in  question  was  one  not  incurred  in  the  course  of 
their  employment  as  carriers,  but  occasioned  by  an  act  of  tortious  conversion, 
in  direct  contravention  of  the  terms  on  which  the  goods  were  deliver- 
ed to,  and  accepted  by  them.  But  to  found  this  argument  there  was  no 
other  evidence  but  the  mere  fact  of  the  booking  of  the  goods  for  a  diffe- 
rent coach,  and  a  subsequent  non-delivery,  which  can  amount  to  no  more  than 
a  negligent  discharge  of  duty  in  their  character  of  carriers,  and  not  to  an  entire 


(o)  4  East  Rep.  371.  ()>)  5  East  Rep.  507. 

*574 


Chap.  5.]       For  the  Safe  Delivery  of  Goods.  574 

renunciation  of  that  character,  and  of  the  duties  attached  to  it,  so  as  to  make 
them  guilty  of  a  distinct  tortious  misfeazance,  in  respect  to  the  goods  in  ques- 
tion. It  was  also  contended,  on  the  part  of  the  plaintiffs,  that  such  a  special 
acceptance  of  goods,  by  a  common  carrier,  as  is  contained  in  the  defendant's 
notice,  is  contrary  to  the  policy  of  the  common  law,  which  has  made  com- 
mon carriers  responsible  to  an  indefinite  extent,  for  losses  not  occasioned  by 
the  only  excepted  *causes  of  loss,  viz.  "  The  act  of  God,  and  the  kind's  ene- 
mies." But  considering  the  length  of  time  during  which,  and  the  extent  and 
universality  in  which  the  practice  of  making  such  special  acceptances  of  goods, 
for  carriage  by  land  and  water,  has  now  prevailed  in  this  kingdom,  under  the 
observation,  and  with  the  allowance  of  courts  of  justice,  and  with  the  sanc- 
tion also  and  countenance  of  the  legislature  itself,  which  is  known  to  have  reject- 
ed a  bill  brought  in  for  the  purpose  of  narrowing  the  carrier's  responsibility 
in  certain  cases,  on  the  grounds  of  such  a  measure  being  unnecessary,  in  as 
much  as  the  carriers  were  deemed  fully  competent  to  limit  their  own  res- 
ponsibility in  all  cases  by  special  contract :  considering  also,  that  there  is  no 
case  to  be  met  with  in  the  bcoks,  in  which  the  right  of  a  carrier  thus  to  limit, 
by  special  contract,  his  own  responsibility  has  ever  been,  by  express  decision, 
denied,  we  cannot  do  otherwise  than  sustain  such  a  right  in  the  present  in- 
stance, however  liable  to  abuse  and  productive  of  inconvenience  it  may  be  ; 
leaving  to  the  legislature,  if  it  shall  think  fit,  to  apply  such  remedy  hereafter 
as  the  evil  may  require.  In  the  absence,  therefore  of  any  evidence  to  sup- 
port the  plaintiff's  claim,  as  founded  upon  a  supposed  tortious  conversion 
of  the  goods  in  question,  and  of  any  valid  objection,  in  point  of  law,  to  the  spe- 
cial terms  of  acceptance  contained  in  the  defendant's,  the  carrier's  notice,  we 
cannot  help  giving  effect  to  those  terms  in  the  notice ;  by  which,  in  as  much 
as  the  goods  in  question  were  above  the  value  of  5/.  and  not  insured  and  paid 
for  at  the  time  of  delivery,  the  plaintiffs  are  not  accountable  for  the  same : 
and  of  course  the  verdict,  given  for  the  5/.  must  be  set  aside,  and  a  nonsuit 
entered." 

But  in  all  cases  of  notice,  it  is  necessary  for  the  carrier  to  be  prepared  to 
prove,  that  the  notice  was  put  up  in  some  conspicuous  part  of  his  office,  in  clear 
and  legible  characters,  so  that  the  party  delivering  the  goods  might  have  seen 
and  known  of  it  by  common  and  ordinary  observation.  For  in  the  case  of 
Butler  v.  Heane,(q)  which  was  an  action  against  a  carrier,  to  recover  the  val- 
ue of  a  trunk  sent  by  the  defendant's  waggon  from  Cheltenham  to  London,  but 
the  same  was  lost.  At  the  latter  place  a  board  was  fixed  in  the  office,  giving 
the  usual  notice ;  but  at  the  former  place,  where  it  had  been  delivered,  the  on- 
ly mode  of  publishing  this  notice  was  by  a  hand-bill,  stating  in  a  large  print, 
the  advantages  of  sending  by  this  waggon ;  but  the  notice  in  a  very  small 
character  at  the  bottom.  Lord  Ellenborough  Ch.  J.  said,  "  This  is  not  suffi- 
cient evidence  of  a  special  contract  to  limit  the  defendant's  common  law  liabil- 


(</)  2  Campb.  Rep.  415.  and  ace  Clark    v.  Gray,  4  Esp.  Rep.  177. 

*575 


575  Of  Contracts  with  Common  Carriers     [Part III. 

ity.  The  jury  ought  to  believe,  that  the  plaintiff  or  his  agent,  at  the  time  of 
delivery,  saw,  or  had  ample  means  of  seeing,  the  terms  on  which  the  defen- 
dant carries  on  his  business.  How  can  this  be  inferred  from  a  bill  *nailed  on 
the  door,  which  called  the  attention  to  every  tiling  attractive,  and  concealed 
what  was  calculated  to  repel  customers.  If  a  carrier  is  to  be  allowed  to  limit 
his  responsibility,  he  must  take  care  that  every  one  who  deals  with  him  is 
fully  informed  of  the  limits  to  which  he  confines  it.  So,  in  Chiton  v. 
Hunt,(r)  which  was  an  action  against  a  carrier  for  the  loss  of  a  box  ol  wearing 
apparrel,  to  be  carried  from  Oxford  to  London,  which  had,  been  delivered  to  a 
servant  of  the  defendant,  who  went  round  the  town  to  collect  goods,  &c. 
A  printed  bill  was  stuck  up  in  the  office  where  the  business  was  transacted, 
and  cards  of  a  similar  purport  had  been  circulated,  together  with  advertisements 
in  the  Oxford  newspapers,  but  no  notice  was  affixed  on  the  cart,  and  there 
was  no  evidence  that  the  plaintiff  had  ever  seen  any  of  the  notices  ;  the  carrier 
was  held  not  to  be  discharged  from  his  liability  ;  and  the  court  refused  a  new 
trial,  saying,  "  that  the  notice  in  the  office  ought  to  be  in  such  large  characters, 
that  no  person  delivering  goods  there,  can  fail  to  read  it  without  gross  negligence  ; 
and  that  it  a  carrier's  servant  receives  goods  at  a  distance  from  the  office,  the 
special  terms  on  which  he  deals  ought  to  be  communicated  through  some  other 

medium." 

So  in  Cobden  v.  Bolton, (s)  which  was  an  action  against  the  proprietor  of  a 
coach,  to  recover  the  value  of  a  broach  and  ring  sent  by  his  coach  ;  in  answer  to 
which,  evidence  was  given  of  an  examined  copy  of  a  board  fixed  in  the  office, 
stating  that  the  coach-owners,  &c.  would  not  be  liable  for  jewels,  &c,  how- 
ever  small  in  value,  unless  notice  was  given  and  paid  for  as  such  ;  but  it  was 
proved,  t  hat  in  the  printed  hand-bill  circulated  by  the  defendant,  it  was  on- 
ly said  generally,  that  "  they  would  not  be  answerable  for  more  than  51. 
unless,  &c."  But  Lord  Ellenborough  Ch.  J.  said,  "  The  printed  paper  in  cir- 
culation dispensed  with  any  necessity  to  attend  to  the  notice  in  the  office.  I 
have  a  right  to  presume,  that  what  is  circulated  by  his  authority,  contains  the 
whole  of  the  limitations  he  intends  to  put  on  his  common  law  responsibility  as 
a  carrier,  and  gives  a  full  statement  of  the  special  contract  into  which  he  enters 
with  his  customers  ;"  and  he  directed  the  jury  to  find  a  verdict  for  the  plain- 
tiff, which  they  accordingly  did.  But  where  the  terms  of  a  particular  notice 
have  been  recognized  by  the  owner  of  the  goods,  or  he  has  been  informed  of 
them,  he  is  bound  by  the  notice.  This  was  settled  in  the  case  of  Clay  v . 
Willati,  just  cited,(<)  where  it  appeared  that  the  defendants  were  proprietors 
of  a  stage-coach,  by  which  the  plaintiff  sent  a  quantity  of  light  guineas  from 
Wakefield  to  London  ;  two  shillings  for  the  carriage,  and  two-pence  for  book- 
ing were  paid  at  the  time  of  the  delivery.  But  it  being  proved,  that  the  per- 
son by  whom  the  plaintiff  sent  the  parcel  to  the  inn  knew  of  the  usual  terms, 


(r)  3  Campb.   27.  (0  Ante,  573.      Sec  alto  1    Stark.  Rep. 

(s)  2Camr:b.  10S.  72.  156. 

*576 


Chap.  5.]  For  the  Safe  Delivery  of  Goods.  577 

and  had  not  discovered  the  contents  *of  the  parcel,  nor  paid  for  them  as  valua- 
bles, the  plaintiff  was  nonsuited. 

So,  in  the  case  of  Alfred  v.  Horne,(x)  which  was  an  action  brought  to  re- 
cover the  value  of  a  lost  parcel.  The  plaintiffs,  who  were  jewellers  residing 
in  London,  were  in  the  habit  of  receiving  goods  from  an  agent  of  theirs  at 
Wisbeach  in  Suffolk.  The  parcel  in  question,  containing  articles  of  jewelry, 
was  delivered  by  a  servant  of  the  plaintiff's  agent  at  Wisbeach,  to  the  defen- 
dant's book-keeper  there,  and  Is.  6d.  was  paid  for  the  carriage,  and  2d.  for  the 
booking.  The  coachman  received  the  parcel,  and  was  told  that  it  was  a  par- 
cel of  value.  The  parcel  was  afterwards  lost.  The  defendant  proved,  that 
the  plaintiff  had  received  printed  notices  in  London,  from  the  Golden  Cross, 
Charing  Cross,  where  the  coach  set  out,  in  the  usual  form,  viz.  "  that  the  de- 
fendant would  not  be  liable  for  any  goods  exceeding  51.  in  value,  unless  paid  for 
accordingly,  delivered  either  there,  or  to  their  agents  in  the  country.  But  no 
evidence  was  offered  to  prove  that  such  notice  was  given  at  Wisbeach.  Abbott 
Ch.  J.  held,  "  that  it  was  sufficient  that  the  plaintiff  had  received  the  notice  in 
London,  and  that  the  circumstance  of  the  coachman  having  been  informed  at 
the  time  of  the  delivery  of  the  parcel  to  him  at  Wisbeach,  that  it  was  of  value, 
did  not  amount  to  a  waiver.''  And  his  Lordship  added,  "  that  there  had  been 
no  case  in  which  it  had  been  decided,  that  the  effect  of  a  notice  had  been  done 
away  with  by  the  mere  circumstance  that  the  carrier  knew  the  value  of  the 
contents  of  the  parcel."      The  plaintiff  was  therefore  nonsuited. 

These  notices,  however,  may  be  waived  by  the  carrier's  acceptance  of  goods, 
which  are  of  such  a  description,  as  to  put  him  upon  his  guard  whether  he  will 
accept  them  without  being  paid  an  extra  price,  &c.  Thus  in  the  case  of  Beck 
v.  Evans, (y)  which  was  an  action  on  the  case  against  the  defendants  as  com- 
mon carriers,  for  so  negligently  carrying  a  cask  of  brandy,  that  the  greater  part 
was  lost.  It  appeared,  that  the  waggoner  was  informed  of  the  cask  leaking, 
but  never  took  any  step  to  prevent  it,  although  he  stopped  several  hours  at 
Birmingham  and  other  places,  and  only  took  the  cask  out  when  he  had  other 
parcels  to  deliver.  The  principal  ground  of  defence  was  a  notice  in  these 
terms.  "  The  proprietors  of  the  London  and  Salop  waggons  give  this  public 
notice,  that  they  will  not  be  answerable  for  cash,  &c.  &c,  or  any  other  goods  of 
ichat  nature  or  kind  soever,  above  the  value  of  five  pounds,  if  lost,  stolen,  or 
damaged,  unless  a  special  agreement  is  made,  and  an  adequate  premium  paid 
over  and  above  the  common  carriage,"  &c.  To  this  it  was  said  by  Le  Blanc 
J.,  "  The  exemption  of  carriers  from  general  liability,  by  reason  of  notices  of 
this  sort,  has  been  carried  to  the  utmost  *extent,  and  cannot  be  supported  on 
any  other  ground  than  this,  that  they  shall  not  be  held  liable  to  a  large  amount, 
when  they  only  get  a  small  reward  for  the  carriage  ;  they  are,  therefore,  ex- 
empted from  liability,  where  the  goods  are  of  a  much  larger  value,  than  from  a 


(r)  3  Stark.  Rep.  136.  (;/)  1G  East    Rep.  244.    But  sec  Levi  v. 

Waterliouse,  1  Price's  Rep.  2S0. 

*5?7    *578 


578         Of  Contracts  with  Common  Carriers     [Part  111. 

knowledge  of  their  bulk  or  quality  they  could  probable  guess  them  to  be.  But 
that  cannot  apply  to  goods  of  a  large  bulk  and  known  quality,  where  the  value 
must  be  obvious."  And  Lord  Ellenborough  Ch.  J.  said,  "  If  goods  are  confi- 
ded to  a  carrier  and  it  is  proved  that  he  has  misconducted  himself  in  not  per- 
forming a  duty,  which,  by  his  servant  he  was  bound  to  perform,  that  is  such  a 
misfeazance,  as  if  the  goods  thereby  became  damaged,  his  notice  will  not  pro- 
tect him  from.'' 

So,  in  Wilson  v.  Frecman,(x)  which  was  also  an  action  against  a  carrier, 
for  negligence  in  conveying  a  looking-glass.  The  packing-case  was  marked 
glass  ;  and,  on  delivering  it  at  the  office,  the  book-keeper  was  informed  of  its 
value,  and  desired  to  charge  what  he  pleased  for  it,  but  only  sixpence  booking 
was  paid.  And  the  defence  was,  that  the  notice  required  such  articles  to  be 
paid  for  as  such  when  delivered.  But  Lord  Ellenborough  Ch.  J.  held,  "  That 
as  the  book-keeper  knew  what  the  article  was,  as  well  as  its  value,  and  was 
desired  to  charge  what  he  pleased,  the  payment  of  the  money  was  dispensed 
with,  and  the  notice  was  unavailing." 

So,  a  carrier  is  liable  for  gross  negligence,  notwithstanding  these  notices, 
and  the  degree  of  negligence  is  a  question  to  be  left  to  the  jury,  under  all  the  cir- 
cumstances ;  thus,  in  the  case  Bodcnham  v.  Bennett, (y)  where  a  parcel  of  Welsh 
notes  were  sent  by  the  defendant's  stage-coach  from  Hereford  to  Brecon ;  the 
plaintiffs  were  bankers  at  Hereford.  These  parcels  were  always  sealed  in  a 
particular  manner,  and  the  book-keeper  knew  that  they  contained  Welsh  notes. 
On  the  17th  of  August,  1815,  the  plaintiff's  clerk  took  a  parcel,  sealed  in 
the  usual  manner,  containing  notes  to  the  amount  of  347Z.  lis.  to  the  coach- 
office,  to  go  by  the  coach  to  Brecon  on  the  following  morning  ;  he  paid  for  the 
carriage  and  booking,  bat  no  insurance  was  demanded  or  paid.  On  the  fol- 
lowing morning  the  parcel  was  entered  in  the  way-bill,  and  put  in  the  back 
seat  of  the  coach  ;  there  were  two  other  parcels  also  entered  in  the  way-bill. 
There  were  no  inside  passengers  when  the  coach  left  Hereford.  When  the 
coach  arrived  at  Brecon,  the  book-keeper  there,  who  usually  unloaded  the  coach, 
received  the  way-bill,  and  took  the  two  other  parcels  out  of  the  front  seat 
of  the  coach,  but  he  did  not  look  for  the  bank  parcel,  because  the  coachman 
usually  carried  those  kind  of  parcels  in  his  side-pocket.  The  coachman  on 
that  day  was  intoxicated,  but  not  so  as  to  be  unable  to  attend  to  his  business. 
After  waiting  a  quarter  *of  an  hour  at  Brecon,  the  coach  proceeded  on  to 
Carmarthen  ;  the  parcel  was  lost,  but  the  defendants  proved  the  usual  notice, 
that  they  would  not  be  liable  above  51.  value,  unless  insured  and  paid  for  ac- 
cordingly. The  learned  judge  stated  to  the  jury  the  common  law  liability 
of  carriers,  and  that  they  might  stipulate  to  restrain  it  by  notice.  That  they  had 
given  such  a  notice  in  this  case,  and  therefore  the  question  was,  whether  there 
had  been  gross  negligence  in  the  carrying  of  this  parcel.  He  then  detailed 
the   evidence  to  the  jury,   who  found  for  the  plaintiffs   to  the  amount  of  the 


(,r)  3Campb.  Rep.  527.  (y)  4  Price  Rep.  31. 

*579 


Chap.  5.]       For  the  Safe  Delivery  of  Goods.  579 

notes.     Upon  a  motion  for  a  new  trial,  the  court  refused   the  rule ;  and  Mr. 
Baron  Wood  said,  "  I  see  no  ground  to  disturb   the  verdict.     By  the   common 
law,  the  carrier  was  liable  from  losses  arising  from  accident  or  robbery  ;  nay, 
from  irresistible   force.     The  case   of  Morse  v.  Slue,{z)   pressed  extremely 
hard  on  common  carriers.     Then  special  conditions  were  introduced  for  the 
purpose  of  protecting  carriers  from  extraordinary   events,  but  they  were   not 
meant  to  exempt  them  from  due  and  ordinary  care.     It  cannot  be  supposed, 
that  people  would   entrust  their  goods  to  carriers  on  such  terms.     It  only 
means,  that  they  will  not  be  answerable  for  extraordinary  events  ;  but  we  need 
not,  in  this  case,  lay  down  that  rule.     Here  has  been  gross  negligence,  and  in 
all  cases  of  that  sort  carriers  are  liable.".  So,  in  the  case  of  Birkctt  v.  Willan,{a) 
where,   though    a    similar   notice   of  exemption  was  given,  as  in  the  last  case, 
yet  the  defendant  was  held  jesponsible  for  the  negligent  delivery  of  a  parcel 
of  value  to  a  labouring  man,  a  stranger,    who  enquired  for  the  parcel   at  the 
office,  and  paid  for  the  carriage  of  it,  he  having  been  employed  by  a  person  in 
the  street,  who  gave  him  6d.  for  his  trouble,   and  fraudulently  run  away  with 
the   parcel.     So,  if,  in  the  course   of  delivery,  a  parcel  is  lost  out  of  a  cart 
standing  in  a  public  street,  without  any  one  being  left  in  the  care  of  it,  the  car- 
rier is  answerable,  (b) 

So,  if  goods  are  delivered  to  a  carrier  at  an  intermediate  stage,  and  they  are 
afterwards  lost,  the  carrier  is  liable,  though  he  may  have  given  a  notice  at  the 
place  where  his  waggon  sets  off,  and  also  at  the  ultimate  place  of  his  destina- 
tion, limiting  his  responsibility,  (c)  So,  where  a  carrier  gives  two  notices,  limit- 
ing his  responsibility  differently,  he  shall  be  bound  by  the  one  which  is  the 
least  beneficial  to  himself,  (d)  So,  a  carrier  is  liable  where  he  sends  a  parcel, 
which  is  afterwards  lost,  by  a  different  coach  to  that  which  is  specially  named 
and  appointed  by  the  owner  of  the  parcel,  (e) 

*In  the  case  of  Yate  v.  Willan,(f)  it  was  held  that  the  payment  of  money 
into  court  upon  a  count,  stating  a  special  contract,  is  an  admission  of  such  con- 
tract, and  narrows  the  inquiry  to  the  quantum  of  damages  sustained  by  the  breach 
thereof.  Therefore,  if  the  plaintiff  declare  as  upon  a  general  undertaking  by 
the  defendant  to  carry  goods  for  hire,  on  which  the  defendant  pays  5/.  into 
court,  the  latter  cannot  give  in  evidence  that  the  contract  was  that  he  should 
not  be  answerable  for  goods  lost  to  a  greater  value  than  five  pounds,  unless 
entered  and  paid  for  accordingly  :  though  if  no  money  had  been  paid  into  court, 
the  plaintiff  must  have  been  nonsuited  upon  such  evidence. 

2.  Of  the  Delivery  of  Goods  to  a  Carrier,  and  of  his  Acceptance 
thereof.] — Where   goods  are  to  be   conveyed  by  a  common  carrier,  they 

(z)   1  Ventr.  190.  (e)  Gnrnett  v.  Willmx,  5  Barn.  &  Aid.  53. 

(«)  2  Barn.  &  Aid.  Rep.    356.  See  also  (/)  2  East  Rep.  103.  See  also  Clarke  & 

Duff  v.  Build,  6  Mo.  469.  Gray,  6  East,  564,  where  it  was  determined, 

(6)   Smith  v.  florae,  2  Mo.  Rep.    18.  See  that  the  five  pounds  may  be  recovered  upon  a 

also  Btttson  v.  Donovan,  4  Barn.  &  Aid.  21.  declaration  drawn  in  the  common  form,  with- 

(c)  Gouger  v.  Jolly,  Holt,  N.  P.  Rep.  317.  out  stating  the  notice  as  part  of  the  contract. 


((/)  Jtfwmi  v.  Baker,  2  Stark.  Rep.  255. 


*580 


5S0  Of  Contracts  ivith  Common  Carriers      [Part  III. 

should  regularly  be  left  at  the  usual  booking  office  and  there   entered  and  paid 
for  ;  it  having  been   held,  that  the  mere  leaving  of  goods  at  an  inn  yard,  from 
whence  a  carrier  sets  out,  is  no  delivery    to  or  for  the  carrier :  thus  in  Selway 
v.  Holloway, {g)  where  it  appeared  that  a  parcel   of  hops  were  left  at  the  inn 
where    Holloway  lodged,  without   proving   any  delivery    to  Hollowoy  or  his 
servant ;  but  only  to  a  woman  (who  had  served  Holloway  before,  but  had  quit- 
ted his  service  for  five  years)  who  said  to  the  carman,   if  he  laid  them  down, 
Holloway  would  find  them.     And  upon  the  trial,  it  was  proved,  that  there  were 
many  carriers  who  lodged   at  the  same  inn,  but  none   of  them  went   out  the 
same  day.     A  verdict  was  found  for  the  defendant ;  and  upon   a  motion  for  a 
new  trial  the  court  were  all  of  opinion,  "  that  the  hops  could  not  be  said  to  be 
delivered   to  Holloway ;  and  therefore  a  new  trial  was  denied :  but  if  goods 
are   delivered  to    a  carrier's  servant  or  agent,  whom    he  appoints  to  receive 
goods  for  him,   this  is  a  sufficient  delivery  to,  and  acceptance  of  them  by  the 


carrier." 


But  a  parcel  delivered  to  the  driver  of  a  stage  coach  is  a  sufficient  delivery 
to  bind  the  master,  and  to  excuse  the  driver.  (/*) 

3.  Of  the  Carrier's  Liability  to  deliver  Goods  to  the  Consignee's 
Premises.] — In  general  where  goods  are  brought  by  a  common  carrier  to 
an  inn  yard  or  other  usual  place  of  deposit,  the  carrier  is  bound  to  deliver 
them  to  the  place  directed  ;(209)  particularly  where  porterage  is  usually 
charged.  This  point  was  determined,  in  the  case  of  Golden  v.  Manning, {i) 
where  the  following  facts  were  stated  for  the  "opinion  of  the  Court :  "  The 
defendants  were  common  carriers  from  Birmingham  to  London  ;  that  on  the  7th 
day  of  June,  1771,  they  received  a  box,  containing  two  pieces  of  silk,  consisting 
of  119  yards,  directed  to  Mr.  Samuel  Ireland,  Princes  Street,  Spitalfelds,  Lon- 
don ;  that  the  box  came  to  the  defendant's  warehouse,  in  London,  on  the  8th 
of  June  following,  with  no  legible  directions  upon  it,  where  it  remained  for  the 
space  of  a  year ;  at  which  time  the  plaintiff  and  Ireland,  settling  their  accounts 
together,  discovered  the  mistake  of  this  box  having  been  sent  by  the  Birming- 
ham coach,  and  of  its  not  being  delivered  :  upon  which  the  plaintiff  and  Ireland 
went  to  the  warehouse,  and  found  the  box  ;  and  upon  opening  it,  a  letter  of  ad- 
vice from  the  plaintiff  to  him  {Ireland)  was  found  therein  ;  and  the  silks  then 
appeared  to  be  damaged  to  the  amount  of  29/.  14*.  ;  and  for  that  reason  plain- 


(«•)   1  Lord  Raym.  46.  Term  Rep.  3S9,  where  three  of  the  Judges 

(I)  Williams  v.  Cranston,2  Stark.  Rep. 82.  thought  the  carrier  was  bound  to  deliver  the 

(i)  3Wil.  429.     2Bl.Rep.916.  S.  C.  See  goods  to  the  owner;   but  Lord  Kenyon  Ch.  J. 

also   the  case  of  Hyde  and  another  v.  The  inclined  to  a  contrary  opinion. 

Trent   or      Mersey  Navigation     Company,  5 


(209)  Where  goods  were  delivered  on  board  the  defendant's  vessel,  to  be  carried  to  Alba- 
ny, and  on  arrival  there,  were,  by  direction  of  the  defendant,  put  on  the  wharf;  it  was  held, 
that  this  was  not  a  delivery  to  the  consignee  ;  and  that  evidence  of  a  usage  to  deliver  goods 
in  this  manner,  was  immaterial ;  but  that  the  defendant  was  liable  in  trover  for  such  part 
of  the  goods  as  were  not  actually  delivered  to  the  consignee.  A  carrier  is  not  justified  by  the 
inability  or  refusal  of  the  consignee  to  receive  the  goods,  in  leaving  them  on  a  wharf,  but  it  is 
his  duty  to  secure  them  for  the  owner.     Ostrander  v.  Brown,  15  J.  R.  39. 


Chap.  5.]     For  the  Safe  Delivery  of  Goods.  581 

tiff  and  Ireland  refused  to  take  the  box  and  silks  upon  their  being  offered  to 
them ;  and  the  defendant,  Manning,  refused  to  make  any  satisfaction  for  the 
damage  ;  that  the  defendant,  before  the  said  time,  neither  delivered  the  goods, 
nor  gave  any  intelligence  to  Ireland  of  the  arrival  of  the  box  at  the  warehouse  ; 
that  the  name  of  Samuel  Ireland,  and  place  of  his  abode,  appear  in  a  printed 
book,  being  a  directory,  containing  the  names  and  places  of  abode  of  merchants 
and  traders,  which  book  they,  the  defendants,  had  in  their  warehouse  ;  that  the 
way-bill  in  the  defendant's  custody  and  possession  contained  the  name  of  Sa7n~ 
uel  Ireland,  and  no  further  directions  ;  that  no  enquiry  was  made  at  the  defen- 
dant's warehouse  at  Birmingham  of  the  plaintiff,  to  know  where  Ireland  lived  ; 
nor  was  any  inquiry  made  according  to  the  directory  ;  and  that  defendants  hire 
a  porter,  at  a  stated  salary  by  the  week,  to  carry  out  goods  which  come  by  their 
coach,  and  receive  the  porterage  of  such  goods  as  are  sent  out  by  the  said 
porter." 

The  Court  gave  judgment  for  the  plaintiff  and  said,  "  We  are  to  determine 
this  case  upon  the  facts  and  particular  circumstances  therein  stated  ;  so  there 
is  no  necessity  for  us  to  consider  of  the  laws  in  general  respecting  carriers.  It 
is  stated  to  us,  that  these  defendants  hire  a  porter,  at  a  stated  salary  by 
the  week,  to  carry  out  goods  which  come  by  their  coach,  and  receive  the 
porterage  of  such  good3  as  are  sent  out  by  that  porter  ;  therefore  we  appre- 
hend vtte  are  bound  to  say,  that  the  defendants  were  obliged  to  send  the  goods 
by  their  porter  to  be  delivered  at  Samuel  Ireland's  house  in  Princes  Street, 
Spitalfields,  according  to  the  direction,  and  the  promise  and  undertaking 
laid  in  the  declaration  ;  as  the  defendants  constantly  kept  a  porter  for  this  pur- 
pose, they  engaged,  and  specially  undertook  (in  this  particular  case)  to 
deliver  the  goods  to  Mr.  Ireland,  by  their  porter.  There  can  be  no  doubt 
but  carriers  are  obliged  to  send  notice  to  persons  to  whom  goods  are  directed, 
of  the  arrival  of  those  goods  within  a  reasonable  time,  and  must  take  special 
care  that  the  goods  be  delivered  to  the  right  *person.  It  was  by  the  neg- 
ligence of  the  defendants  that  the  direction  of  the  box  was  obliterated.  The 
master  of  a  stage-coach  takes  a  greater  price  for  the  carriage  of  goods  than 
other  carriers ;  so  he  is  certainly  bound  either  to  send  out  the  goods  from 
his  warehouse,  in  London,  to  be  delivered  to  the  persons  to  whom  the  same 
are  directed,  or  to  send  notice  of  the  arrival  thereof  within  a  reasonable  time. 
If  the  defendants  in  this  case  were  to  be  asked,  in  what  manner  they  usually 
deliver  goods  at  London,  they  would  answer,  "  We  always  keep  a  porter  at 
London,  by  whom  we  send  out  the  goods  to  be  delivered  to  the  persons  to  whom 
the  same  are  directed."     Our  opinion  is  confined  to  this  particular  case  only. 

4.  Bv  AND  AGAINST    WHOM  THE  ACTION    SHOULD  BE  BROUGHT    FOR  THE  LoSH 

of  a  Parcel,  &c] — In  actions  against  common  carriers  for  the  loss  or  dam- 
age of  goods  entrusted  to  their  care,  it  is  frequently  made  a  question  in  whose 
name  the  action  must  be  brought,  whether  in  the  name  of  the  consignor  or  con- 
signee ?  There  are  several  cases  reported  on  this  point,  and  the  result  of  them 
seems  to  be,  that  where  the  consignor  is  to  pay  for  the  carriage  of  the  goods, 

71  *582 

W 


5S2  Of  Contracts  with  Common  Carriers     [  Part  III . 

and  cannot  charge  the  consignee  upon  the  delivery  to  the  carrier,  the  action 
should  be  brought  in  his  name  ;  but  where  the  consignee  orders  the  goods  to  be 
sent  by  a  particular  carrier,  to  whom  they  are  delivered,  or  is  liable,  in  the 
ordinary  course  of  trade,  to  pay  for  them  upon  the  delivery  to  the  carrier,  the 
action  must,  in  general,  be  brought  in  the  name  of  the  consignee.  Thus  in  the 
case  of  Davis  v.  Ja7nes,{k)  which  was  an  action  against  a  common  carrier,  for 
not  delivering  goods  sent  by  him  :  and  the  only  question  was,  "  in  whose  name 
the  action  ought  to  have  been  brought  ?"  The  fact  was,  that  Davis  and  Jordan, 
the  present  plaintiffs,  were  manufacturers  of  cloth  at  Shipton  Mallet,  and  their 
declaration  charged,  that  being  possessed  of  cloth  as  of  their  own  proper  goods, 
delivered  the  same  to  the  defendant  being  the  common  carrier,  &c,  and  request- 
ed him  to  deliver  it  safely  and  securely  for  them,  to  one  Elizabeth  Bowman,  at 
the  Three  Nuns  at  Whitechapel ;  which  they  undertook  to  do,  for  a  reasonable 
price  payable  and  paid  by  the  said  plaintiffs  to  the  defendant,  but  the  goods 
were  lost  and  never  delivered  ;  the  defendant  pleaded  not  guilty,  and  the  plain- 
tiffs obtained  a  verdict.  And  upon  an  objection  being  made  that  the  action 
ought  to  have  been  brought  in  the  name  of  the  consignee  of  the  goods  and  not 
by  the  consignors,  the  court  determined  that  the  action  was  properly  brought : 
and  Lord  Mansfield  Ch.  J.  said :  "  This  is  an  action  upon  the  agreement  between 
the  plaintiffs  and  the  carrier  ;  the  plaintiffs  were  to  pay  him ;  therefore  the  ac- 
tion is  properly  brought  by  the  persons  who  agreed  with  him,  and  were  to  pay 
him." 

*So,  in  the  case  of  Moore  and  others  v.  Wilson,  (I)  which  was  an  action  of 
assumpsit :  and  the  declaration  stated,  that  the  defendant  undertook  to  carry 
the  goods  for  a  certain  hire  and  reward  to  be  paid  by  the  plaintiffs.  It  was 
proved,  at  the  trial,  that  Clarke,  the  consignee  had  agreed  with  the  plaintiffs  to 
pay  the  carriage  of  the  goods,  which  the  defendant's  counsel  contended  did  not 
prove  the  declaration.  And  Butter  J.,  before  whom  the  cause  was  tried,  being 
of  that  opinion,  nonsuited  the  plaintiffs.  But  a  motion  was  afterwards  made 
for  a  rule  to  show  cause  why  the  nonsuit  should  not  be  set  aside,  on  the  ground 
that  the  allegation  that  the  hire  was  to  be  paid  by  the  plaintiffs  was  immaterial, 
and  that  in  all  cases  of  this  kind  the  contract  wa3  virtually  made  between  the 
carrier  and  the  sender  of  the  goods  ;  that  no  private  agreement  between  the 
consignor  and  the  consignee  could  vary  the  question  as  between  the  consignor 
and  the  carrier  ;  that  though  the  consignor  might  have  parted  with  the  property 
in  the  goods,  he  might  maintain  an  action  agaist  the  carrier.  But  at  all  events 
the  consignor  might  be  considered  as  the  agent  of  the  consignee  for  the  purpose 
of  bringing  this  action.  Butter  Just,  said  :  "  That  on  considering  the  question 
he  found  he  had  been  mistaken  in  point  of  law  ;  for  that  whatever  might  be 
the  contract  between  the  vendor  and  vendee,  the  agreement  for  the  carriage  was 
between  the  carrier  and  the  vendor,  the  latter  of  whom  was  by  law  liable." 
And  the  other  two  judges  being  of  the  same  opinion,  the  rule  was  made  abso- 
lute without  further  argument. 


f583 


(fc)  5  Burr.  2680. 


(0  1  Term  Rep.  659. 


Chap.  5. J  For  the  Safe  Delivery  of  Goods.  583 

But  in  the  case  of  Dawes  v.  Peck,(m)  where  the  plaintiff  proved  his  case  by 
showing  the  delivery  of  the  goods  to  a  person  employed  by  the  defendant  at 
the  usual  place,  where  they  were  booked  to  be  sent  by  the  defendant's  waggon, 
and  the  usual  price  paid  for  booking  by  the  plaintiff's  servant.     The  casks  were 
••  directed  to  Mr.  Odey,  Hillmorton  near  Rugby,  Warwickshire,  by  Peck's  wag- 
gon."   It  appeared  that  they  were  afterwards  sent  by  the  waggon  and  were  left  at 
the  Crown  Inn  at  West  Haddon,  which  was  the  nearest  place  to  Hillmorton  in  the 
road  which  the  waggon  travelled  ;  and  where,  after  laying  some  time,  they  were 
seized  in  consequence  of  the  time  mentioned  in  the  permit  for  their  removal 
being  expired.     The  merits  of  the  case  as  between  the  plaintiff  and  Odey,  the 
consignee,  or  in  respect  of  the  legality  of  the  seizure  were  not  entered  into  • 
but  the  defendant's  counsel,  in  opening  his  case  to  the  jury,  read  a  letter  from 
the  plaintiff  to  Odey,  after  the  seizure  was  known,  in  which  he  said  that  the 
liquors  sent  "  were  in  quantity  and  prices  exactly  conformable  to  your(  Odey's) 
order:  but  by  what  authority  they  were  ever  left  at  the  Crown  Inn  at    West 
Haddon  *remains  for  the  innkeeper,  or  the  carrier,  to  explain  or  account  for. 
All  I  have  to  observe  is  this,  that  the  goods   having  been  sent  conformable  to 
your  orders,  and  by  the  carrier  you  directed,  I  shall  certainly  look  to  you  for 
their  amount,"  &c     Upon  reading  this  letter,  which  was  admitted  to  be  genu- 
ine, Lord  Kenyon  Ch.  J.  was  of  opinion,  that  the  action  by  the  present  plain- 
tiff could  not  be  supported  ;  for  that  the  legal  right  to  the  goods  after  such  deliv- 
ery was  vested  in  the  consignee,  to  whom  alone  the  carrier  was  answerable, 
if  at  all ;  and  therefore  the  plaintiff  was  nonsuited.     A  new  trial,  however,  was 
moved  for  ;  but  after  argument  the  Court  determined  that  the  action  could  only 
be  brought  by  the  consignee,  and  they  refused  the  rule. 

The  same  question  has,  indeed,  arisen  upon  bills  of  lading  ;  and  in  the  case  of 
Evans  v.  Martlett,(n)  where  it  was  said,  per  totam  curiam,  "  That  if  goods  by 
bill  of  lading  are  consigned  to  A.,  A.  is  the  owner,  and  must  bring  the  action 
against  the  master  of  the  ship  if  they  are  lost.  But  if  the  bill  be  special,  to  be 
delivered  to  A.  to  the  use  of  B.,  B.  ought  to  bring  the  action  ;  but  if  the  bill  be 
general  to  A.,  and  the  invoice  only  shows  that  they  are  upon  the  account  of  B., 
A.  ought  always  to  bring  the  action,  for  the  property  is  in  him,  and  B.  has  only 

a  trust." 

When  goods  are  lost  or  damaged,  the  carrier  is  liable  to  be  sued,  either  by 
special  action  on  the  case  in  tort,  or  assumpsit ;  but  for  a  total  loss,  the  carrier 
is  not  liable  to  be  charged  in  trover,  unless  there  be  a  tortious  conversion,  (o) 
He  is,  however,  subject  to  an  action  of  trover  where  he  delivers  goods  to  a 
wrong  person,  though  it  happen  by  mistake.  (/>) 

5.  Of  the  Carrier's  Lien  on  Goods  for  his  Hire.]  A  carrier  may  retain 
the  goods  for  his  hire.     As    in  the  case  of  Skinner  v.    Upshaw,{q)   where  the 


(m)  8  Term  Rep.  330.  See  also  1  Atk.  248.  (o)  1  Ventr.  223.  5  Burr.  2327. 

«  vpy  v  (p)  Ywd  v.  Harbottle,  Teak's  Cas.  N.  P.  49. 

"(n)*  1   Ld.  Raym.  271.  3  Salk.  290.   12  fo)  2  Ld.  Rajrm,  752. 

Mod.  156.  »5Q4 


584         Of  Contracts  with  Common  Carriers       [Part  III. 

plaintiff  brought  an  action  of  trover  against  the  defendant,  being  a  common  car- 
rier, for  goods  delivered  to  him  to  carry,  &c.  Upon  not  guilty  pleaded,  the  de- 
fendant gave  in  evidence,  that  he  offered  to  deliver  the  goods  to  the  plaintiff,  if 
he  would  pay  him  his  hire  ;  but  that  the  plaintiff  refused,  &c,  and  therefore  he 
retained  them.  And  it  was  ruled,  by  Holt  Ch.  J.,  that  a  carrier  may  retain 
the  goods  for  his  hire  ;  and  upon  this  direction  the  defendant  obtained  a  verdict. 
So,  by  general  usage,  a  common  carrier  has  a  lien  for  his  general  balance.  But 
such  usage  cannot  be  supported  by  a  few  recent  instances  of  detention  of  goods 
by  four  or  five  carriers  for  their  general  balance  ;  for  such  a  lien  is  not  found- 
ed on  any  common  law  right,  but  only  by  contract,  or  general  usage  :(r)  Nor 
can  the  carrier's  lien  in  any  case  affect  the  right  of  the  consignor  to  stop  the 
goods  in  transitu,  (s) 

*2.  OF  CONTRACTS  WITH  COMMON  CARRIERS  BY  WATER. 


Owners  and  masters  of  general  ships  (t)  and  vessels  carrying  goods  for  hire 
on  the  high  seas,  or  in  navigable  rivers,  are  considered  as  common  carriers, 
and  answerable  against  all  events,  except  the  acts  of  God,  and  of  the  King's 
enemies,  in  the  same  manner  as  common  carriers  by  land  are  responsible  for 
the  loss  or  damage  of  goods  entrusted  to  their  care,  (m)  (210)  Thus,  in  the 
case  of  Morsv.  Slue,(v)  which  was  an  action  against  the  defendant  as  master 
of  a  ship  for  the  loss  of  certain  goods  entrusted  to  his  care  for  safe  delivery  ;  to 
which  he  pleaded,  that  in  the  night,  whilst  the  ship  lay  in  the  river  Thames, 
eleven  persons  came  on  board  on  pretence  of  pressing  of  seamen  for  the  King's 
service,  and  by  force  seized  and  took  the  goods.  And  it  was  argued  that  there 
was  not  any  negligence  imputable  to  the  master.  But  the  Court  held,  that  he 
was  nevertheless  liable,  and  gave  judgment  against  him  accordingly. 

So,  in  the  case  of  Dale  v.  Hall,(w)  which  was  an  action  upon  the  case 
against  a  shipmaster  or  keelman,  who  carried  goods  for  hire  from  port  to  port ; 
the  plaintiff  did  not  declare  against  him  as  a  common  carrier  upon  the  customs 
of  the  realm,  but  the  declaration  was,  that  the  defendant,  at  the  special  instance 
of  the  plaintiff,  undertook  to  carry  certain  goods,  consisting  of  knives,  and 
other  hardware,  safe  from  such  a  port  to  such  a  port,  and  that  in  consideration 


(r)  Vide  AspinaH  v.  Pkkfcrd,  3  Bos.  & 
Pul.  44.  n.  a.  Rushforlh  v.  Hadfield,  6  East 
Rep.  519.  7  East  Rep.  224. 

(s)  Oppenheim  v.  Russell,  3  Bos.  &  Pul.  42. 
Butler  v.  Woolcott,  2  New  Rep.  C.  B.  64. 

(t)  The  term  "  general  s/n'p"  is  used  in 
contradistinction  to  a  chartered  ship,  which  is 
employed  under  a  sealed  instrument  called  a 
charter-party.     See  Abbott,  101. 

(it)  Coggs  v.  Bernard,  2  Ld.  Raym.  918. 
1  Ventr.  238.  Jones's  Law  of  Bailments, 
106,7.     Abbott,  208. 


(»>)  T.  Ravm.  220.  1  Ventr.  190.  238. 
S.C. 

(if)  1  Wils.  3S1.  See  the  case  of  Lyon 
and  another  v.  Mells,  5  East  Rep.  428.,  where 
it  was  determined,  that  a  carrier  by  water 
for  hire  impliedly  promises  that  the  vessel 
shall  be  tight  and  fit  for  the  voyage ;  he  is, 
therefore,  answerable  for  damage  arising  from 
leakage,  though  he  had  given  notice,  "  that 
he  would  not  be  answerable  for  any  damage, 
unless  occasioned  by  want  of  ordinary  care 
in  the  master  or  crew  of  the  vessel." 


(210)  See  Jlymnr  v.  Astor,  6  Cowen,  266. 
notes  (203)  (205)  (•06). 

'585 


Richards  v.   Gilbert,  5  Day,  415.     See  ante, 


Chap.  5.]         For  the  Safe  Delivery  of  Goods.  585 

thereof  the  plaintiff  undertook  and  promised  to  pay  him  so  much  money  ;  that 
the  goods  were  delivered  to  the  defendant  on  board  his  keel,  and  that  the  goods 
were  kept  so  negligently  by  him  that  they  were  spoiled,  to  the  plaintiff's  dam- 
age. That  upon  the  general  issue,  nun  assumpsit,  this  cause  came  on  to  be 
tried  before  Justice  Burnett,  and  the  plaintiif  proved,  the  goods  were  all  in 
good  order  and  clean  when  they  were  delivered  on  board,  and  that  they  were 
damaged  by  water  and  rusted  to  the  amount  of  24/.  This  was  all  the  plain- 
tiff's evidence.  For  the  defendant  it  was  insisted  at  the  trial,  that  as  the  plain- 
tiff had  proved  no  particular  negligence  in  the  defendant ;  that  he  might  be  per- 
mitted to  give  in  evidence  that  he  had  taken  all  possible  care  of  the  gocds  ; 
that  the  rats  made  a  leak  in  the  keel  or  hoy,  whereby  the  goods  were  spoiled 
by  the  water  coming  in  ;  that  they  *pumped  and  did  all  they  could  to  prevent 
the  goods  being  damaged,  which  evidence  the  Judge  permitted  to  be  given,  and 
thereupon  left  it  to  the  jury,  who  found  a  verdict  for  the  defendant.  But  upon 
a  rule  to  show  cause  why  there  should  not  be  a  new  trial,  the  Court  granted 
the  rule,  and  Lee  Ch.  J.  said,  "  I  am  of  opinion  that  the  evidence  given  for 
the  defendant  was  not  admissible.  The  declaration  is,  that  the  defendant  un- 
dertook for  hire  to  carry  and  deliver  the  goods  safe  ;  and  the  breach  assigned 
is,  that  they  were  damaged  by  negligence  :  this  is  no  more  than  what  the  law 
says  ;  every  thing  is  a  negligence  in  a  carrier  or  hoyman  that  the  law  does  not 
excuse,  and  he  is  answerable  for  goods  the  instant  he  receives  them  into  his 
custody,  and  in  all  events,  except  they  happen  to  be  damaged  by  the  act  of 
God,  or  the  King's  enemies  ;  and  a  promise  to  carry  safely,  is  a  promise  to 
keep  safely." 

So,  in  the  case  of  Smith  v.  Shepherd,(x)  which  was  an  action  brought  against 
the  defendant  as  master  of  a  vessel  navigating  the  river  Ouse  and  Humhcr  from 
Selby  to  Hull,  by  the  plaintiff  whose  goods  had  been  wet  and  spoiled  ;  at  the 
trial  whereof  it  appeared  in  evidence,  that  at  the  entrance  of  the  harbour  at 
Hull  there  was  a  bank,  on  which  vessels  used  to  lie  in  safety,  but  of  which  a 
part  had  been  swept  away  by  a  great  flood  some  short  time  before  the  misfor- 
tune in  question,  so  that  it  had  become  perfectly  steep  instead  of  shelving 
towards  the  river ;  that  a  few  days  after  this  flood  a  vessel  sunk  by  getting  on 
this  bank,  and  her  mast,  which  was  carried  away,  was  suffered  to  float  in  the 
river  tied  to  some  part  of  the  vessel  :  and  that  the  defendant  upon  sailing  into 
the  harbour  struck  against  the  mast,  which,  not  giving  way,  forced  the  defen- 
dant's vessel  towards  the  bank,  where  she  struck,  and  would  have  remained 
safe  had  the  bank  been  in  its  former  situation,  but  on  the  tide  ebbing  her  stern 
sunk  into  the  water,  and  the  goods  were  spoiled  :  upon  which  the  defendant 
tendered  evidence  to  show  that  there  had  been  no  actual  negligence  :  Mr.  Jus- 
tice Heath,  before  whom  the  cause  was  tried,  rejected  the  evidence  ;  and  he  fur- 
ther ruled  that  the  act  of  God,  which  could  excuse  the  defendant  must  be  im- 
mediate ;  but  that  this  was  too  remote  ;  and  directed  the  jury  to  find  their  ver- 


(.t)  At  the  Lent    Assizes   for  Yorkshire,  1 795.    Abbott  on  Shipping,  23-2. 

*586 


533  Of  Contracts  with  Common  Carriers      [Part  III. 

diet  for  the  plaintiff ;  and  they  accordingly  did  so.  The  case  was  afterwards 
submitted  to  the  consideration  of  the  Court  of  King's  Bench,  who  approved  of 
the  direction  given  by  the  learned  Judge  at  the  trial,  and  the  plaintiff  succeed- 
ed in  the  cause.  There  does  not  appear  to  have  existed  in  this  case  any  bill 
of  lading,  or  other  instrument  of  contract ;  and  the  question  therefore  depended 
upon  general  principles,  and  not  upon  the  meaning  of  any  particular  words  or 
exception. 

The  contract  for  the  conveyance  of  merchandize  in  a  general  ship  is  that 
by  which  the  master  and  owners  of  a  ship,  destined  on  a  particular  *voyage,  en- 
gage separately  with  various  merchants  unconnected  with  each  other  to  con- 
vey their  respective  goods  to  the  place  of  the  ship's  destination.  And  this  con- 
tract, although  usually  made  personally  with  the  master,  and  not  with  the  own- 
ers, is  considered  in  law  to  be  made  with  them  also,  and  that  both  he  and 
they  are  separately  bound  to  the  performance  of  it.(?/)  When  goods  are  sent 
on  board  the  ship,  the  master,  or  person  on  board  acting  for  him,  usually  gives 
a  receipt  for  them,  and  the  master  afterwards  signs  and  delivers  to  the  merchant 
sometimes  two,  and  sometimes  three  parts  of  a  bill  of  lading,  of  which  the 
merchant  commonly  sends  one  or  two  to  his  agent,  factor,  or  other  person  to 
whom  the  goods  are  to  be  delivered  at  the  place  of  destination,  that  is,  one  on 
board  the  ship  with  the  goods,  another  by  the  post  or  other  conveyance  ;  and 
one  he  retains  for  his  own  security.  The  master  should  also  take  care  to  have 
another  part  for  his  own  use. 

The  terms  of  exception  in  the  old  form  of  a  bill  of  lading  were  :  "  The 
dangers  of  the  seas  excepted."  But  these  terms  were  altered  some  years  ago 
in  consequence  of  an  alarm  taken  by  the  ship-owners  at  the  decision  of  the 
cause  of  Smith  v.  Shepherd,  just  mentioned  ;  and  of  late  the  exception  is  usu- 
ally made  in  the  following  words  :  ("  The  act  of  God,  the  King's  enemies^ 
fire,  and  all  and  every  other  dangers  and  accidents  of  the  seas,  rivers,  and 
navigation,  of  whatever  nature  and  kind  soever  excepted.'''')  But  in  the  case  of 
ships  homeward  bound  from  the  West  India  Islands,  which  send  their  boats  to 
fetch  the  cargo  from  the  shore,  there  is  introduced  a  saving  out  of  this  excep- 
tion "  Of  risks  of  boats,  so  far  as  ships  are  liable  thereto."  And  in  that  case 
the  whole  clause  is  as  follows  :  "  The  act  of  God,  the  King's  enemies,  fire,  and 
all  and  every  other  dangers  and  accidents  of  the  seas,  rivers  and  navigation  oj 
what  nature  and  kind  soever,  save  risk  of  boats,  so  far  as  ships  are  liable 
thereto,  excepted.'1''  In  general  the  name  of  the  consignee  is  usually  mentioned 
in  the  bill  of  lading,  but  sometimes  the  shipper  or  consignor  is  himself  named 
as  consignee,  and  the  engagement  is  expressly  to  deliver  to  him  or  his  assigns  ; 
and  sometimes  no  person  is  named  as  consignee,  but  the  terms  of  the  instrument 
are,    "  To   be  delivered,   &c.  unto  order,   or  assigns," 

which  words  are  generally  understood  to  import  an  engagement  on  the  part 
of  the  master  to  deliver  the  goods  to  the  person  to  whom  the  shipper  or  con- 
signor shall  order  the  delivery,  or  to  the  assignee  of  such  person,  (z) 


(y)  Abott  on  Shipping,  102.  108.  (z)  Ibid.  203,  4. 

*587 


Chap.  5.]        For  the  Safe  Delivery  of  Goods,  587 

Upon  the  general  exception   of  perils  of  the  sea,  it  was  determined  in  the 
case  of  Pickering  v.  [Barclay, (a)  where  the  ship  had  been  overpowered  and 
plundered  on  the  high  seas  by  pirates,  that  the  owners  were  not  answerable 
for   the  loss  of  goods  under  such  circumstances,  *be cause  it  is  said  that  the 
taking  by  pirates  was  accounted  a  peril  of  the  sea. 

So,  in  the  case  of  Bever  v.  Tomlinson,{b)  which  came  before  the  Court 
of  King^s  Bench,  a  short  time  before  the  late  alteration  of  the  bill  of  lading, 
and  which  was  an  action  brought  to  recover  the  value  of  goods,  for  which  the 
master  had  signed  a  bill  of  lading  containing  an  exception  only  of  the  perils  of 
the  sea,  although  made  during  the  time  of  a  war,  and  which  goods  were  lost 
in  consequence  of  the  ship  being  designedly  struck  by  the  vessel  of  an  enemv  • 
it  was  doubted  by  the  Court,  whether  a  loss  so  occasioned,  were  within  the 
meaning  of  this  exception  ;  and  it  is  said  that  the  cause  never  proceeded  to  a 
final  judgment. 

So,  in  the  case  of  Buller  v.  Fisher,(c)  where  it  appeared  that  the  ship  in 
which  the  goods  were  conveyed,  was  run  down  in  day-light,  and  not  in  a  tem- 
pest, by  one  of  two  other  ships  that  were  sailing  in  an  opposite  direction  to  her, 
both  of  which  kept  to  windward,  as  did  also  the  defendant's  ship ;  but  it  was 
matter  of  so  much  doubt  whether  the  master  of  the  defendant's  ship  ought  to 
have  understood  the  course  which  the  others  would  pursue,  and  have  borne  to 
leeward  to  avoid  them,  that  no  blame  was  considered  to  be  imputable  to  him 
for  not  having  done  so,  nor  was  any  fault  attributable  to  the  persons,  who  had 
the  conduct  of  either  of  the  other  ships.  This  loss  was  therefore  held  to  fall 
within  the  meaning  of  this  exception,  and  to  have  happened  by  a  peril  of 
the  sea. 

But  in  the  case  of  robbery,  leakage,  fire,  or  where  the  ship  was  accidentally 
driven  against  a  bank  at  the  entrance  of  a  harbour,  the  courts,  we  have  already 
seen,(e?)  have  determined  that  these  accidents  do  not  fall  within  the  terms  of 
the  general  exception.  So,  it  is  said,(e)  that  not  every  loss  proceeding  di- 
rectly from  natural  causes,  is  to  be  considered  as  happening  by  a  peril  of  the 
sea.  If  a  ship  perish  in  consequence  of  striking  against  a  rock  or  shallow, 
the  circumstances,  under  which  the  event  takes  place,  must  be  ascertained  in  or- 
der to  decide,  whether  it  happen  by  a  peril  of  the  sea  or  by  the  fault  of  the  mas- 
ter ;  if  the  situation  of  the  rock  or  shallow  is  generally  known,  and  the  ship 
not  forced  upon  it  by  adverse  winds  or  tempest,  the  loss  is  to  be  imputed  to  the 
fault  of  the  master.  On  the  other  hand,  if  a  ship  is  forced  upon  such  a  rock 
or  shallow  by  adverse  winds  or  tempest,  or  if  the  shallow  was  occasioned  by  a 
sudden  and  recent  collection  of  sand  in  a  place,  where  ships  could  before  sail  in 
safety  ;  the  loss  is  to  be  attributed  to  the  act  of  God  or  the  perils  of  the  sea. 

In  the  case  of  Edwards  and  others  v.  Sherratt,(f)   where  the  defendant, 


(a)    2  Rol.  Abr.   248.   pi.  10.     Sty.    132.     Term,  40  Geo.  3.  Abbott,  236, 238. 
See  also  Barton  v.  Wolliford,  Comb.  5*6.  S.  P.         (d)  Ante,  586. 
(6)  East.  Term,  36  Geo.   3.  Abbott,  237.  (e)  Abbott,  239. 

(c)  Sittings   at    Guildhall     after     Mich.        (/)  1  East  Rep.  604. 

*588 


583      Of  Contracts  with  Common  Carriers        [Part  III. 

a  common  carrier  from  Birmingham  through  Wolverhampton  to  *Radford, 
employed  distinct  boats  to  carry  to  and  from  Birmingham  to  Wolverhampton 
which  passed  on  different  days.  The  plaintiff  knowing  this,  and  having  corn 
at  Wolverhampton  which  was  threatened  to  be  seized  by  a  mob,  wrote  to  the 
defendant  at  Birmingham  to  send  a  private  boat  quickly  on  account  of  the 
state  of  the  country,  to  take  the  corn  to  Birmingham,  to  which  the  defendant 
not  returning  any  answer,  and  plaintiff  fearing  to  wait  till  the  day  the  defen- 
dant's boat  would,  in  the  usual  course  of  employment,  go  from  Wolverhamp- 
ton to  Birmingham,  stopped  the  boat  passing  by  from  Radford  to  Birmingham, 
and  without  disclosing  the  circumstances  to  the  boatman,  prevailed  on  him 
to  take  the  corn  on  board,  and  then  despatched  him  forward  in  the  nigh  t, 
having  privately  sent  orders  to  open  the  lock  at  any  time  when  he  should 
pass.  After  a  verdict  for  the  defendant,  negativing  that  the  corn  was  delivered 
in  the  usual  course  of  dealing  as  a  common  carrier,  the  Court  held  that  the 
verdict  might  be  sustained,  either  on  the  general  ground  of  fraud  in  the  plain- 
tiff, or  on  the  circumstances  of  the  case,  furnishing  altogether  evidence  of  a 
tacit  stipulation  on  the  part  of  the  defendant  to  do  the  best  he  could,  but  not 
be  answerable  as  a  common  carrier  for  the  violence  of  the  mob  ;  or  because  it 
did  not  appear  that  the  boatman,  whose  ordinary  employment  was  between 
Radford  and  Birmingham  had  authority  from  the  defendant  to  accept  the  goods 
at  Wolverhampton  for  Birmingham,  much  less  to  accept  them  in  that  manner. 

If  a  common  carrier  from  A.  to  C.  receives  goods  for  delivery  at  B.  an  in- 
termediate place,  at  which  he  safely  arrives,  and  has  an  opportunity  of  deliver- 
ing the  goods,  but  omits  so  to  do  ;  and  the  vessel  and  goods  in  their  passage  to 
C.  are  unavoidably  lost,  he  is  answerable  for  the  value  of  the  goods,  though 
he  accepts  them  under  a  particular  notice,  which  limits  his  responsibility  to  the 
want  of  ordinary  care,  (g) 

As  soon  as  the  master  accepts  the  goods  on  board  his  ship,  his  and  the  own- 
er's responsibility  commence.  But  the  manner  of  delivering  the  goods,  and 
consequently  the  period  at  which  the  responsibility  of  the  master  and  owners 
will  cease,  will  depend  upon  the  custom  of  particular  places ,  and  the  usage  of 
particular  trades.  (A)  Thus,  a  hoyman  who  brings  goods  from  an  out-port  to 
the  port  of  London,  is  not  discharged  by  landing  them  at  the  usual  wharf, 
but  is  bound  to  take  care  and  send  them  out  by  land  to  the  place  of  consign- 
ment. And  if  the  consignee  require  to  have  the  goods  delivered  to  himself,  and 
direct  the  master  not  to  land  them  on  a  wharf  at  London,  the  master  must  obey 
the  request  ;  for  the  wharfinger  has  no  legal  right  to  insist  upon  the  goods 
being  landed  at  his  wharf,  although  the  vessel  be  moored  against  it.  But  in 
the  case  of  ship3  coming  from  a  foreign  country,  delivery  at  *a  wharf  in 
London  discharges  the  master  ;  if  the  consignee  send  a  lighter  to  fetch  the 
goods,  the  master  of  the  ship  is  obliged  by  the  custom  of  the  River  Thames  to 
watch  them  in  the  lighter,  until  the  lighter  is  fully  laden,  and  until   the  regular 


(g)  Ellis  v.  Turner,  8  Term  Rep.  531.  (*)  Abbott,  229. 

*589  #590 


Chap.  5.]  For  the  Safe  Delivery  of  Goods.  590 

time  of  its  departure  from  the  ship  is  arrived ;  and  he  cannot  discharge  himself 
from  this  obligation  by  declaring  to  the  lighterman  that  he  has  not  hands  to 
guard  the  lighter,  unless  the  consignee  consent  to  release  him  from  the  perform- 
ance of  it.  In  the  case  of  ships  coming  from  Turkey,  and  obliged  to  per- 
form quarantine  before  their  entry  into  the  port  of  London,  it  is  usual  for  the 
consignee  to  send  down  persons  at  his  own  expence,  to  pack  and  take  care  of 
the  goods  ;  and  therefore  where  a  consignee  had  omitted  to  do  so,  and  goods 
were  damaged  by  being  sent  loose  to  shore  ;  it  was  held,  that  he  had  no  right 
to  call  upon  the  master  of  the  ship  for  a  compensation.  (?) 

A  common  carrier  is  not  responsible  where    the  servant  of  the   consignee  or 
owner  is  sent  with  the  goods  for  the  purpose  of  protecting  them. (k) 

And  in  the  case  of  fire,  the  owners  are  wholly  exempt  by  statute  2G  Geo.  3. 
c.  86.  s.  2.  from  making  good  any  loss  or  damage  happening  to  goods  by  reason 
thereof ;  and  in  other  cases  of  loss  the  legislature  have  limited  their  responsi- 
bility. And  by  the  third  section  of  the  act  it  is  enacted,  "  That  no  master, 
owner,  or  owners  of  any  ship  or  vessel  shall  be  subject  or  liable  to  answer 
for  or  make  good,  to  any  one  or  more  person  or  persons,  any  loss  or  damage, 
which  may  happen  to  any  gold,  silver,  diamonds,  watches,  jewels,  or  precious 
stones,  which,  from  and  after  the  passing  of  this  act,  shall  be  shipped,  taken  in, 
or  put  on  board  any  such  ship  or  vessel,  by  reason  or  means  of  any  robbery, 
embezzlement,  making  away  with,  or  secreting  thereof,  unless  the  owner  or 
shipper  thereof  shall,  at  the  time  of  shipping  the  same,  insert  in  his  bill  of 
lading,  or  otherwise  declare,  in  writing,  to  the  master,  owner  or  owners  of 
such  ship  or  vessel,  the  true  nature,  quality,  and  value  of  such  gold,  silver, 
diamonds,  watches,  jewels,  or  precious  stones." 

By  the  stat.  7  Geo.  2.  c.  15.  it  is  enacted,  "  That  no  person  or  persons  who  is, 
are,  or  shall  be  owner  or  owners  of  any  ships  or  vessels  shall  be  subject  or  liable 
to  answer  for,  or  make  good  to  any  one  or  more  person  or  persons,  any  loss 
or  damage  by  reason  of  any  embezzlement,  secreting,  or  making  away  with 
by  the  master  or  mariners,  or  any  of  them,  of  any  gold,  silver,  diamonds,  jew- 
els, precious  stones,  or  other  goods  or  merchandize,  which  shall  be  shipped, 
taken  in,  or  put  on  board  any  ship  or  vessel,  or  for  any  act,  matter,  or  thing, 
damage  or  forfeiture,  done,  occasioned,  or  incurred  by  the  said  master  or  mari- 
ners, or  any  of  them,  without  the  privity  and  knowledge  of  such  owner  or  owners, 
further  *than  the  value  of  the  ship  or  vessel,  with  all  her  appurtenances,  and 
the  full  amount  of  the  freight  due,  or  to  grow  due,  for  and  during  the  voyage 
wherein  such  embezzlement,  &c.  shall  be  committed. 

And  the  pilotage  act  52  Geo.  3.  c.  39.  contains  a  further  exception  to  the 
liability  of  ship-owners,  by  relieving  them  from  any  responsibility  for  any  loss 
or  damage  occasioned  by  the  neglect  or  incapacity  of  any  pilot,  who  may  be 
taken  on  board  in  pursuance  of  the  provisions  of  that  act.  And  the  last  act  53 
Geo.  3.  c.    159.  which  was  passed  to  amend  the  two  first  acts,  enact  in  sub- 


(t)  Abbott,  230.  (k)  East  India  Company  v.  Pullen,  2  Stra.  690. 

72  *591 


591    Of  Contracts  with  Common  Carriers,  &c     [Part  III. 

stance  first,  that  owners  and  part  owners  of  ships  shall  not  be  liable  to    make 
good  any  loss  or  damage  to  any  goods  or  merchandize,  laden  on  board  their 
ships,  beyond  the  value  of  the  vessel  and  freight,  provided  such  damage  should 
be  occasioned  without  their  fault  or  privity.     The  object  of  this  first  clause  was 
to  give  a  protection  to  part-owners  as  well  as  to  owners.     The  term  part-own- 
ers is  omitted  in  the  preceding  statutes,  and  introduced  for  the  first  time  in  the 
present,  and  it  seems  to  have  been  the  object  of  the  legislature,  by  the  first 
clause  to  explain  the  words,  "  owner  or  owners"  used  in  the  two  previous  acts, 
and  to  give   protection  to  part-owners,    which  might  not  perhaps  have   been 
extended  to  them  under  the  general  words,  owner  or  owners  in  the  7  Geo.   2. 
and  26  Geo.  3.     Secondly  by  the  next  section  there  is  a  legislative  exposition 
of  what  is  to  be  considered  as  freight,  which  the  previous  statutes  had  left  in 
general  and  loose  terms.      The  value  of  the  carriage  of  goods   and  merchan- 
dize, though  belonging  to  owners  and  part-owners,  is  to  be  considered  within 
the  meaning  of  the  term  freight ;  and  also  the  hire  of  the  vessel  due,  or  to 
grow  due  by  virtue  of  any  contract,  whether  on  behalf  of  his  majesty,  or  of  any 
person  or  persons  or  any  body  politic  or  corporate.  Thirdly,  the  act  then  provides 
for  separate  losses  ;  but  declares  that  nothing  therein  contained  shall  be  taken  to 
diminish  the  responsibility  to  which  any  master  or  mariner  may  be  owner  or  part- 
owner.  Fourthly,  the  act  next  proceeds  to  except  the  owners  of  lighters,  barges, 
boats, &c.  employed  in  inland  navigation,  and  ships  and  vessels  not  duly  registered. 
Such  are  the  principal  clauses  of  this  act ;  the  remaining  sections  of  which  re- 
late to  proceedings  against   owners   and  part-owners  in  courts  of  equity,  (k) 
In  a  very  late  case  upon  this  statute,  it  has  been  determined  by  the  Court  of 
King's  Bench  that  the  meaning  of  the  1st  and  4th  sections,  taken  conjunctively, 
was  ;   1 .  That  in  an  action  against  several  joint  defendants,  as  ship  owners,  for 
damages  sustained  by  the  loss  of  goods  laden  on  board  their  ships,  they  were 
not  liable  in  that  character  beyond  the  value  of  the  ships  and  freight  due,  and 
to  grow  due  ;  although  the  loss  were  occasioned  by  the  misconduct  of  one  of 
the  defendants,  who  was  both  master  and  part-owner.     2.  That  the  value  *of 
the  ship  was  to  be  calculated  at  the  time  of  the  loss,  and  not  at  the  time  of  the 
commencement  of  the  voyage.     3.  That  in   calculating  the  value  of  freight 
due,  or  to  grow  due,  the  money  actually  paid  in  advance  was  to  be  includ- 
ed.^) (211) 

(k)  2  Holt  on  Shipping,  109.  1st  edit.         (/)   Wilson  v.  Dickson,  2  Barn.  &  Aid.  2. 


(211)  The  owners  of  vessels  are  notliable  as  common  carriers,  for  goods  shipped  on  deck, 
and  thrown  overboard  in  a  storm  for  the  preservation  of  the  ship.  Smith  v.  Wright,  1 
Caines,  43.  But,  where  the  master  of  a  vessel  received  on  board  certain  goods,  to  be  trans- 
ported from  Hartford  to  Boston,  at  customary  freight,  which  were  stowed  on  deck,  and 
ejected  during  the  voyage,  by  reason  of  tempestuous  weather  ;  it  was  held,  that  the  own- 
ers were  liable  for  the  loss  ;  but  if  such  stowage  was  authorized  by  the  consent  of  the 
shipper,  or  by  custom,  it  would  be  otherwise.  Barber  v.  Brace,  3  Conn.  Rep.  9.  If  a  car- 
rier undertake  to  transport  goods  by  water,  for  hire,  he  is  bound  to  provide  a  vessel,  sufficient 

*592 


Chap.  5.]         Of  Contracts  with   Wharfingers.  592 

3.  OF  CONTRACTS  WITH  WHARFINGERS  TO  SHIP  GOODS,  fee. 

Where  goods  are  sent  oa  the  coasting  trade,  and  the  usage  is  to  deliver  them 
on  the  wharf  to  the  mate  of  the  6hip  by  which  they  are  to  be  carried  ;  if  they 
are  delivered  to  the  mate,  the  wharfinger's  responsibility  is  at  an  end,  and  he 
is  not  liable,  though  the  goods  are  lost  from  the  wharf  before  they  are  ship- 
ped.(212)  Thus,  in  the  ease  of  Cobban  and  another  v.  Downe,{m)  which  was 
an  action  brought  against  the  defendant,  who  was  a  wharfinger,  to  recover  the 
value  of  a  parcel  of  goods  which  had  been  sent  to  the  defendant's  wharf  to  be 
forwarded  to  Inverness,  in  Scotland.  The  plaintiff  proved  the  sending  of  four 
trusses  to  the  wharf ;  one  of  which  was  lost.  They  were  directed  to  be  sent 
by  the  ship  George,  bound  for  that  port.  The  defendant  proved,  that  the  goods 
were  brought  to  the  wharf,  and  laid  at  the  door  of  the  counting-house  ;  that 
while  they  lay  there,  the  mate  of  the  George  was  called  ;  that  he  came  ;  and 
the  truss  in  question  was  delivered  to  him ;  but  what  became  of  it  afterwards 
did  not  appear.  It  was  contended,  on  the  part  of  the  defendant,  that  it  was  no 
part  of  the  duty  of  a  wharfinger,  where  goods  are  to  go  coastwise,  either  ac- 
cording to  general  usage,  or  the  particular  usage  of  the  defendant's  wharf,  to 
see  the  goods  actually  put  on  board  :  that  they  were,  in  many  instances  deliver- 
ed from  the  warehouse,  or  from  the  wharf  to  the  mate  of  the  vessel,  to 
be  by  him  and  his  crew  put  on  board  the  vessel ;  and  that  on  the  deliv- 
ery to  them,  all  further  responsibility  on  the  part  of  the  wharfinger  was  at 
an  end.  And  several  wharfingers  were  called,  who  proved  the  invaria- 
ble usage  to  be  so :  that  goods,  which  were  not  to  go  coastwise,  were  de- 
livered from  the  carts  on  board  the  ship :  that  when  goods  came  to  the 
wharf,  and  no  ship  was  then  at  the  wharf  bound  for  the  port  to  which 
the  goods  were  directed,  they  were  warehoused  ;  and  on  the  arrival  of  the 
first  ship,  they  were  delivered  to  the  mate  of  the  vessel :  but  when  a  vessel  was 
there,  they  were  immediately  delivered  to  him  to  be  put  on  board ;  that  be- 
fore the  shipping  of  foreign  goods,  the  wharfinger  charged  for  wharfage  and 
shipping ;  but  for  shipping  goods  coastwise  they  charged  for  wharfage  only, 
eonsidering  that  they  had  nothing  to  do  with  the  shipping,  being  satisfied 
with  a  delivery  to  the  mate,  or  other  officer  on  board  the  ship,  as  putting 
an  end  to  their  responsibility.  Lord  Ellcnborough  Ch.  J.  said  "  This  is  an  ac- 
tion charging  the  defendant  in  his  character  of  a  wharfinger.  What  the 
•duty  of  a  wharfinger  is,  is  to  be  measured  by  the  usuge  and  practice  of  oth- 
ers in  similar  situations,  or  his  known  and  professed  liability.     Every  man  con- 


Cm)  5  Esp.  Rep.  41. 


in  all  respects,  for  the  voyage,  well  manned  and  furnished  with  sails,  anchors  and  all  neces- 
sary furniture  ;  and  if  a  loss  happen   through  a  deficiency  in  any  of  these  respects,  the  car- 
rier must  make  it  good.     Bell  v.  Reed,  4  Binn.  137. 
(212)  See  Piatt  v.  Hibbard,  7  Cowen,  497. 

*592 


593  Of  Contracts  ivith  Warehousemen.      [Part  III. 

tracts  with  the  public  according  to  the  known  and  ascertained  extent  of  the 
trade  or  business  in  which  he  is  engaged.  The  defendant  has  proved  that, 
by  established  usage,  the  goods  are  delivered  by  the  wharfinger  to  the  mate 
and  crew  of  the  vessel  which  is  to  carry  them  ;  from  which  time  it  has  been 
considered  that  their  responsibility  is  at  an  end.  Undoubtedly  where  the  re- 
sponsibility of  the  ship  begins,  that  of  the  wharfinger  ends  ;  and  a  delivery 
to  the  ship  creates  a  liability  there :  but  the  delivery  must  be  to  an  officer 
or  person  accredited  on  board  the  ship  ;  it  cannot  be  delivered  to  the  crew  at 
random  :  but  the  mate  is  such  a  recognized  officer  on  board  the  ship,  that 
delivery  to  him  is  a  good  delivery-,  and  the  responsibility  of  the  ship  attaches, 
if  the  jury  believe  that  the  mate  received  the  goods,  as  stated  by  the  defen- 
dant's witnesses.  It  has  been  said,  that  they  were  lost  on  the  wharf  before 
they  were  put  on  board  ;  but  if  they  were  once  well  delivered  to  the  mate,  the 
subsequent  loss  cannot  affect  the  wharfinger :  they  are  delivered  into  the 
care  of  the  mate  ;  and  his  negligence  cannot  revive  any  responsibility  on  the 
part  of  the  wharfinger.  I  think  therefore  the  usage  has  been  sufficiently  proved; 
that  by  a  delivery  to  the  mate  of  the  ship  the  wharfinger's  responsibility 
was  at  an  end ;  and  that  the  only  question  for  the  jury  to  decide  was, 
was  the  delivery  made  of  the  goods  to  the  mate  of  the  George,  by  which  ves- 
sel the  goods  were  ordered  to  be  sent  ?"  The  jury  under  this  direction  found 
a  verdict  for  the  defendant.  (213) 

4.  Of  Contracts  with  Warehousemen.] — A  warehouseman  is  bound  on- 
ly to  take  reasonable  and  ordinary  care  of  goods  deposited  in  his  warehouse.(214) 
Thus,  in  the  case  of  Cailiff  znA.  another  v.  Danvers,(n)  which  was  an  action  of 
assumpsit  against  the  defendant  as  a  warehouseman  for  negligently  keeping  a 
quantity  of  Ginseng,  which  had  been  deposited  by  the  plaintiff  in  his  ware- 
house ;  whereby  it  had  been  destroyed  and  spoiled.  It  appeared  that  the  box 
containing  the  Ginseng  had  been  opened,  by  the  plaintiff's  directions,  for  the 
purpose  of  showing  it  to  persons  who  were  about  to  purchase  it ;  that 
several  persons  looked  at  it  on  different  days,  and  every  night  the  lid  of  the 
box  was  shut  down,  but  not  nailed.  That  many  cats  were  kept  in  the  ware- 
house, and  all  possible  care  taken  to  destroy  vermin  ;  notwithstanding  which 
the  rats  had  got  at  the  Ginseng,  and  destroyed  it.  Lord  Kenyan  Ch.  J.  said  : 
"  that  a  warehouseman  was  only  obliged  to  exert  reasonable  diligence  in 
taking  care  of  the  things  deposited  in  his  warehouse  :  that  he  was  not,  like  a 
carrier  to  be  considered  as  an  insurer,  and  liable  for  all  losses  happening  other- 
wise than  by  the  act  of  *God,  or  the  King's  enemies  ;   and  that  the  defendant 

(n)  Peake'sCas.N.  P.114. 


(213)  A  wharfinger  who  has  not  been  directed  to  store  goods,  is  not  liable  for  the  loss  of 
them  upon  his  wharf,  after  they  have  been  weighed ;  because  the  wharfage  paid  is  not  a  con- 
sideration for  the  safe  keeping  of  the  goods.     Pezant  v.  Crawford,  1  M'Cord,  334. 

(214)  See  Piatt  v.  Hibbard,  7  Cowen,  497. 


'594 


Chap.  5.]      Of  Contracts  with  Warehousemen'  594 

in  the  present  case,  having  exerted  all  due  and  common  diligence  for  the  pres- 
ervation of  the  commodity,  was  not  liable  to  any  action  for  this  damage  which 
he  could  not  prevent."     The  plaintiff  was  therefore  nonsuited. 

A  warehouseman,  however,  is  liable  for  goods  lost  or  injured,  from  the  time 
the  crane  is    applied  to  raise  them  into  the  warehouse  ;  and  it  is  no  defence 
that  they  were  injured  by  falling  into  the  street  from  the  breaking  of  the  tackle, 
the  carman  who  brought   the    goods   having  refused  the    offer  of  slings  for 
further  security.     Thus,  in  the  case   of  Thomas    and  others  v.  Day,(o)  the 
declaration    stated,  that   in  consideration  that  the  plaintiff  had    sent  and   de- 
livered six  packs  of  linen  to  be  housed,  lodged  and   warehoused,  in  a  certain 
warehouse  of  the  defendant,  the  defendant  undertook  safely  and  securely  to  take 
care  of,  lodge    and  warehouse  them :  the  breach  assigned  was,  that  he  did  not 
safely  and  securely  lodge,  house,  and  warehouse  them  ;  that  two  packs  of  linen 
were  damaged  and  spoiled  by  being  left  in  the  open  street,  after  falling  on  the 
pavement,  and   thereby  wetted  and  spoiled.     The  facts  proved  were,  that  the 
plaintiffs    were   shipping-brokers ;  the  defendant  was  a  warehouseman  ;  that 
on  the  2d  July  they  had   sent  the   six  packs  of  linen  in  question  to  the  de- 
fendant's warehouse:  that  the  person  sent  saw  the  defendant's  clerk,  who  gave 
him  the  tackle  which   he    applied  to  the  packages;  and  removed    five   into 
the  warehouse  ;  and   the   sixth  was   left  in  the  crane  when  he  went  away, 
the    defendant's    servant   having   paid  the  carriage.     Another   witness  then 
proved,  that  in  a  short  time   after,  going  by,  he  found  one  of  the  packs  in  the 
street  which  was  drenched  in  water,   and  seventy-nine   pieces  of  linen  spoiled. 
The  defendant  denied  that  he   was  liable   to    make  good    the    damages,  on 
the  ground  that  the  accident  had  happened  from  the  cords  of  the  packs  break- 
ing,   his  servant  having  offered  to  give  slings  to  the  carman   to  make  them 
more  secure  ;  which  had  been   refused  :  that  it  was  the  duty  of  the   person 
sending  the  goods  to  see  that  they  were   well-corded   and  secured,  so  that 
if   any  accident  happened   from  their   breaking,   the  warehouseman  was  not 
liable.     These  facts  he  proposed  to  prove,  and   in  addition  thereto,   that  ware- 
housemen did  not  consider  themselves  as  liable  by  usage,   under   the  circum- 
stances, above  stated.     But  Lord  Ellenborough  Ch.  J.  said  :  "  The  whole  ques- 
tion turned  upon  the    single  point  of,  when  the  warehouseman's  liability  com- 
menced, and  the  agency  of  the  carman  ended  1     For  until  the  goods  were  de- 
livered to  the  warehouseman,  the  carman  was  to  be  considered  as  the  agent  of 
the  person  sending  them  ;  but  when  the  warehouseman  took  them  into  his  own 
hands,  the  moment  the  warehouseman  applied  his  tackle  to   them,  from   that 
moment  his  liability   *commenced.     It  has  been  urged,   that   the   defendant's 
servants  offered  him  the  use  of  slings.     These  are  provided  by  the  defendant  ; 
and  he  is  bound  to  see  that  they  are  of  sufficient  strength  and  fit  for  the  pur- 
pose ;  and  he  should  not  apply  his  tackle  unless  that  could  be  performed  which 
he  was  bound  to  do.     If  the  slings  were  necessary,  the  refusal  of  the  carman, 

(o)  4  Esp.  Ron.  262. 

*595 


595 


Of  Contracts  with  Warehousemen.       [Part  III. 


or  his  declining  the  use  of  them,  will  not  exempt  the  warehouseman ;  he  ought 
to  have  insisted  on  the  carman's  using  them  ;  and  if  he  refused,  he  should 
have  repudiated  those  goods  and  refused  to  accept  them.  It  appears  here,  that 
the  damaged  pack  of  linen  was  in  the  crane,  and  lifted  from  the  cart,  it  was 
then  in  his  possession ;  and  being  so,  I  think,  in  point  of  law,  he  is  liable  for 
the  loss."     The  jury  accordingly  found  a  verdict  for   the  plaintiff. 


'{ 


Chap.  6.]  Of  Husband  and  Wife  ;  and  of  Contracts,  fyc  596 


♦CHAPTER  VI. 


OF  HUSBAND  AND  WIFE  :  AND  OF  CONTRACTS  MADE  BY  THE  WIFE  BE- 
FORE AND  AFTER  MARRIAGE  ;  AND  OF  THEIR  RESPECTIVE  LIABIL- 
ITIES :  AND  ALSO  OF  CONTRACTS  MADE  WITH  PERSONS  LIVING  TO- 
GETHER AS  MAN  AND  WIFE. 

By  the  law  of  England,  when  a  man  and  woman  marry,  all  the  personal  prop- 
erty of  the  wife  passes  to  the  husband,  together  with  the  right  of  enforcing  any 
contracts  which  may  have  been  made  with  her,  and  suing  for  all  debts  owing 
to  her  prior  to  the  marriage  ;  and  as  the  law  vests  all  her  property  in  him, 
so  it  equally  casts  upon  him  all  liabilities,  in  respect  of  contracts  made,  or 
debts  contracted  by  her  whilst  she  was  unmarried.  So,  he  is  bound  by  any 
contracts  made  by  her  with  his  consent  and  authority  during  marriage.  And, 
as  a  general  rule,  he  is  also  bound  by  her  contracts  for  necessaries  supplied 
for  her  necessary  support  and  maintenance.  I  propose  to  consider  the  subject 
of  the  present  chapter,  in  the  following  order,  viz. 


1.  OF  CONTRACTS  MADE,    AND    DEBTS    INCURRED  BV   THE  WIFE  BE- 
FORE MARRIAGE. 

2.  OF  CONTRACTS  MADE  BY  THE  WIFE  DURING  MARRIAGE,  WITH  THE 
AUTHORITY  OF  HER  HUSBAND  AS  HIS  AGENT  :  AND  OF  CONTRACTS 
MADE  BY  A  FEME    COVERT,  SOLE  TRADER,    &c. 

3.  OF  CONTRACTS  MADE  BY  THE  WIFE  DURING  THE  EXILE  OR  BANISH- 
MENT OF  HER  HUSBAND. 

4.  OF  CONTRACTS  FOR  NECESSARIES  FURNISHED  THE  WIFE  DURING 
THEIR  COVERTURE. 

•596 


597  Of  Husband  and  Wife  ;  and  of  Contracts  made  [Part  III. 

*5.  OF  CONTRACTS  MADE  BY  A  WOMAN  LIVING  WITH  A  MAN  AS  HIS 
WIFE. 

6.  HOW  HUSBAND  AND  WIFE  MUST  SUE  AND  BE  SUED. 


1.  OF  CONTRACTS  MADE,   AND   DEBTS   INCURRED  BY   THE   WIFE  BE- 
FORE MARRIAGE. 

All  the  personal  estate,  as  money,  goods,  cattle,  household  furniture,  &c,  that 
were'the  property,  and  in  the  possession  of  the  wife  at  the  time  of  the  marriage 
is,  bylaw,  vested  in  the  husband  ;  and  he  alone  has  the  power  of  disposing  of  the 
whole  or  any  part  of  it  without  her  consent;  and  whatever  part  remains  undis- 
posed of  at  his  death,  shall  go  to  his  executors  or  administrators  and  not  to  the 
wife,  though  she  survive  him.(a)(215)  But  choses  in  action,  as  debts  due  to  the 
wife,  which  are  to  be  demanded  by  action,  though  they  are  likewise  so  far  vest- 
ed in  the  husband,  that  he  may  reduce  them  into  possession ;  yet  if  he  dies 
before  any  alteration  made  by  him,  they  shall  go  to  his  wife,  nor  shall  they, 
without  such  alteration,  survive  to  the  husband  upon  the  death  of  the  wife,  or 
he  have  any  right  to  them,  but  as  he  may  be  entitled,  as  administrator  to  his 
wife. (b) (2 16)     The  husband  is  also  entitled  to  whatever  his  wife  earns  during 


(a)  Bac.  Abr.  tit.  Baron  and  Feme,  C.  3. 
(6)  Ibid.  See  also  Co.  Lit.  351.  a.  b.  n.  1 


3  Mod.  186. 


(215)  See  TJdall  v.  Kenney,  3  Cowen,  590.  Legg  v.  Legg,  8  Mass.  Rep.  99.  Fitch  v. 
Jlyer,  2  Conn.  Rep.  143.  Griswold  v.  Penniman,  Id.  564.  Peyre  v.  Jervey,  2  Des.  221. 
Forrest  v.  Warrington,  Id.  254.  Upshaio  v.  Upshaw,  2  Hen.  &.Munf.  381.  Dade  v.  Alex- 
ander, 1  Wash.  30.     J\V  Cargo  v.  Callicott,  2  Munf.  501. 

(216)  See  Wallace  v.  Talliaferro,  2  Call,  447.  Whitaker  \.  Whitaker,  6  J.R.  112.  Peyre 
v.  Jervey,  2  Des.  221.  But  since  the  determination  of  the  preceding  cases,  the  subject  about 
which  they  are  conversant,  has  come  more  fully  into  discussion,  before  the  court  of  appeals  in 
South  Carolina;  and  it  has  been  repeatedly  decided  by  that  court,  that  the  personal  estate  of 
the  wife,  not  actually  reduced  to  possession  during  the  coverture,  does  not  belong  to  the 
husband,  exclusively;  but  is  distributable  under  the  statute  of  February,  1791.  Byrne's 
Adm.  v.  Stewart's  Adm.  3  Des.  135, 147, 148.  Lynah,  Guardian  of  Elms,  v.  Hughes,  3  Des. 
155.  Speights  v.  Halloivay,  Id.  138.  note.  See  Baker  v.  Hall,  12  Ves.  497.  As  a  general 
rule,  the  choses  in  action  of  the  wife,  survive  to  her,  unless  the  husband  reduce  them  to  pos- 
session, or  assign,  or  release  them,  during  coverture :  And  the  same  rule  is  observed,  where 
the  husband  and  wife,  during  coverture,  become  jointly  entitled  to  a  chose  in  action.  Lodge 
v.  Hamilton,  2  Serg.  &  R.  491.  Wallace  v.  Talliaferro,  at  supra.  Cornwall  v.  Hoyt,  7  Conn. 
Rep.  420.  An  assignment  by  the  husband,  of  a  debt  actually  and  presently  clue  to  the  wife, 
is  valid,  and  devests,  at  least  in  equity,  the  title  of  the  wife.  Cassell  v.  Carroll,  11  Wheat. 
134.  So,  the  husband  may  release  the  damages  for  any  species  of  injury  done  to  the  wife. 
Southicorlh  v.  Packard,  7  Mass.  Rep.  95.  The  choses  in  action  of  the  wife,  accruing  during 
coverture,  vest  absolutely  in  the  husband  and  he  may  sustain  an  action  in  his  own  name,  for 
their  recovery  :  Thus,  a  share  of  personal  intestate  estate,  accruing  in  right  of  the  wife, 
during  coverture,  vests  in  the  husband  absolutely,  even  before  distribution.  Griswold  v.  Pen- 
niman, 2  Conn.  Rep.  564.  And  the  same  rule  will  apply,  where  the  testator  gave  his  daugh- 
ter, afeme  covert,  a  legacy,  directing  the  interest  to  be  paid  to  her  during  coverture,  and  the 

#597 


Chap.  o'.]      By  the  Wife  before  or  after  Marriage.        597 

coverture.(c)  Therefore,  a  note  payable  to  a  feme  sole,  or  order,  who  after- 
wards marries,  becomes  the  property  of  her  husband,  and  she  cannot  legally 
indorse  it  over  to  a  stranger  during  coverture.  (d)(217)  But  where  an  estate  is 
vested  in  trustees  for  the  separate  use  of  the  wife,  the  husband  cannot  maintain 
any  action  at  law  against  a  stranger  for  wrongfully  receiving  the  rents  and  pro- 
fits thereof.(e) 

With  regard  to  debts  contracted  by  the  wife  before  marriage,  the  law  has 
provided,  that  if  a  man  marries  a  woman  who  is  in  debt  to  divers  persons,  the 
husband  and  wife,  during  coverture,  shall  be  sued  for  the  recovery  of  them  . 
but  if  the  wife  die,  and  the  creditors  have  neglected  to  recover  their  debts, 
the  husband  shall  not  be  charged  therewith  after  the  death  of  his  wife  ;  for  the 
debts  must  be  recovered  in  the  life-time  of  the  wife ;(/)  and  if  the  wife  survives 
her  husband,  she  alone  is  liable,  and  not  his  representatives. («•) 


*2.  OF  CONTRACTS  MADE  BY  THE  WIFE  AFTER  MARRIAGE,  WITH  THE 
AUTHORITY  OF  HER  HUSBAND  AS  HIS  AGENT:  AND  OF  CONTRACTS 
MADE  BY  A  FEME  COVERT  AS  A  SOLE  TRADER. 

A  married  woman  has  no  power  to  make  a  contract  without  the  authority  or 
assent  of  her  husband,  precedent  or  subsequent,  express  or  implied  ;  therefore 
if  she  enters  into  any  contract  without  such  authority  or  assent,  it  is  absolutely 
void.(A)  (219)  So,  if  the  wife  sell  or  dispose  of  the  goods  of  her  husband, 
without  his  assent,  the  sale  is  void,  and  the  husband  may  recover  them  back  by 
action  of  trover.(i)  So,  where  the  wife  buys  goods  without  the  consent  of  her 
husband,  he  is  not  chargeable  for  them.  (A)  So,  a  note  or  bill  drawn,  or  indors- 
ed by  a  married  woman,  is  void.(Z) 

So,  where  the  executor  of  a  feme  covert,  who  lived  apart  from  her  husband, 


(c)  Bui.  Ni.  Pri.  136.  (/i)  Ruled  by  all  the  judges  in  the  case  of 

(d)  3  Wils.  5.  Stra.  516.  10  Mod.  246.  Manby  v.  Scott,  1.  Sid.  120.     1  Lev.  4.  1  Mod. 
(ej   Divisonv.  Atkison,  5  Term    Rep.  434.  128. 

(/)  F.  N.  B.  120.  F.     Bac.   Abr.  tit.  Bar-  (t)  Com.  Dip.  tit.  Baron  and  Feme, 

on  and  Feme,  F.  Com.  Dig.  tit.  Baron  and  (.',)  4  Leon.  42. 

Feme,  N.  and  2  C.  (/)  3   Wils.   5.     Sec  also    1  Stra.   516.    1 

(§•)   1  Campb.  Rep.  189.  East  Rep.  432.     3Esp.  Rop.  266. 


principal  afterwards  ;  the  husband  alone  is  entitled  to  receive  the  interest  ;  and  his  receipt 
is  sufficient  evidence  of  payment.     Filch  v.  Ayer,  2  Conn.  Rep.  143. 

(217)  A  promissory  note  given  to  a  feme  covert,  though  it  be  for  a  debt  due  to  her  before 
coverture,  is  legally  payable  to  the  husband,  and  the  property  vests  absolutely  in  him. 
Shutllesivorth  v.Noyes,  8~Mass.  Rep.  229. 

The  incapacities  offemes  covert,  provided  by  the  common  law,  have  relation  to  their  civil 
rights,  and  are  intended  to  ensure  their  protection  and  promote  their  interests;  but  do  not 
affect  their  political  rights,  nor  prevent  them  from  acquiring  or  losing  a  national  character. 
Rights  of  the  latter  description  do  not  stand  upon  the  doctrines  of  municipal  law  merely,  but 
are  founded  upon  the  more  general  principles  of  the  law  of  nations.  Shanks  v.  Dup'ont,  3 
Peters,  242, 248. 

(219)  The  principle  is  well  settled,  that  the  husband  is  not  bound  by  the  contracts  of  his 
wife,  unless  by  some  act  or  declaration,  prior  or  subsequent  to  the  time  of  contracting,  his 
consent  may  be  fairly  inferred.     Webster  v.  JWGhuus,  oBinn.  236.     Per  Tilghman,  Ch.  J. 

73  *598 


598  Of  Husband  and  Wife  ;  and  of  Contracts  made  [Part  III. 

and  traded  as  a  feme  sole,  is  not  liable  to  be  sued  at  law  for  debts  contracted 
by  the  wife  during  her  coverture,  whilst  living  in  a  state  of  separation,  (m) 

In  some  modern  cases,  (n)  it  was  indeed  decided,  that  a  married  woman  liv- 
ing apart  from  her  husband,  and  having  a  separate  maintenance  secured  to  her 
by  deed,  might  contract  and  be  sued  as  a  feme  sole,  and  that  her  second  hus- 
band was  liable  for  debts  contracted  in  the  life-time  of  her  former  husband,  dur- 
ing the  state  of  separation.  But  in  a  subsequent  case  of  Marshall  v.  Rut' 
ton,(o)  these  decisions  were  reviewed  and  fully  considered;  and  after  several 
arguments  at  the  bar,  it  was  solemnly  determined  by  all  the  judges,  that  a  feme 
covert  cannot  contract  and  be  sued  as  a  feme  sole,  even  though  she  be  living 
apart  from  her  husband,  having  a  separate  maintenance  secured  to  her  by  deed. 

But  a  contract  made  by  a  married  woman  with  the  assent  of  her  husband,  is 
good  ;  and  shall  be  taken  as  the  contract  of  the  husband,  (p)  So,  where  a  wife 
traded  by  her  husband's  consent,  and  gave  bills  for  money,  and  he  received 
the  profits.  The  wife  borrowed  100Z.  and  died,  and  a  bill  was  brought  against 
the  husband  for  the  money.  An  issue  was  directed  to  try,  whether  the  mon- 
ey was  borrowed  for  carrying  on  the  trade ;  for  if  it  were,  the  husband  should 
be  decreed  to  pay  it.(y)  So,  if  the  wife  of  A.  receives  101.  to  the  use  of  B., 
and  this  comes  to  the  profit  of  A.  in  a  convenient  and  necessary  way,  though 
it  was  without  A.'s  order  or  consent  after,  yet  A.  is  liable  to  this  debt,  and 
the  count  *or  declaration  shall  be  of  a  receipt  by  the  hands  of  the  baron.(r) 
Again,  if  a  feme  covert,  without  any  express  authority  from  her  husband,  con- 
tract with  a  servant  by  deed,  the  servant,  having  performed  the  service  stipulat- 
ed, may  maintain  assumpsit  against  the  husband. (5)  So,  where  a  husband 
permits  his  wife  to  act  for  him  in  any  department  or  business,  her  contracts  and 
acknowledgments  shall  bind  the  husband,  (t)  (220) 

Of  Contracts  made  with  a  Feme  Covert  sole  Trader.] — By  the  cus- 
tom of  London  if  a  feme  covert  exercises  a  trade  in  which  her  husband  does 
not  at  all  concern  himself,  she  may  be  sued  as  a  feme  sole,  in  the  city  courts, 
for  debts  contracted  by  her  in  the  carrying  on  of  that  trade  ;  and  if  she  has  not 
goods  that  are  not  her  husband's,  she  must  be  imprisoned  till  she  satisfies  her 
creditors  ;  and  as  she  may  be  sued,  so  she  may  sue  as  zfe?ne  sole  for  debts  ow- 
ing to  her,  in  the  way  of  her  trade,  within  the  city,  (w)  (221)  But  a  feme  covert 


(m)   Clayton  v.  Mams,  6  Term  Rep.  604.  a.  pi.  20.     3  Bulst.  90.     1  Stra.  80. 

(n)  Vide   Corbett    v.    Podnitz,     1     Term         (q)  2  Freeman's  Rep.  215.  pi.  298. 
Rep.  5.  (r)  Jenk.  4.  pi.  5. 

(0)  8  Term  Rep.  545.     See  also  Hatchet        (s)   White  v.  Cuyler,  6  Term  Rep.  176. 
v.  Baddeley,  2  Bl.  Rep.  1079.  (t)  Emerson  v.  Blonden,  1  Esp.  Rep.  1  42. 

(p)  4Vin.Abr.  tit.  Baron    and  Feme.  E.         (u)  10  Mod.  6. 

(220)  See  Fenner  v.  Lewis,  10  J.  R.  38.  Spencer  v.  Time,  Addis.  316,  319.  But  an 
acknowledgment  by  a  feme  covert,  is  not  sufficient  to  establish  an  account  against  her 
husband,  though  it  be  for  goods  furnished  her  before  the  marriage.  Shepherd's  Ex.  v. 
Starke,  3  Munf.  29.  See  further,  Webster  v.  M'Ginnis,  5  Binn.  235.  Rotch  v.  Miles, 
2  Conn.  Rep.  638. 

(221)  A  feme  covert,  acting  as  a  sole  trader,  may  execute  a  bond  which  shall  be  obligatory 
uDon  her ;  but  this  power  is  restricted  to  such  bonds  as  relate  to,  or  are  in  some  manner 

*599 


Chap.  6.]     By  the  Wife  before  or  after  Marriage.     599 

sole  trader  cannot  sue  or  be  sued  as  v.  feme  sole,  even  upon  the  custom  of  Lon- 
don, in  the  superior  courts  at  Westminster;  but  her  husband  must  be  joined  for 
conformity,  (u) 

3.  OP  CONTRACTS  *MADE  WITH   THE  WIFE  DURING    THE    EXILE    OR 
BANISHMENT,  &c.  OF  HER  HUSBAND. 

We  have  already  seen  that  the  contracts  of  a.  feme  covert  are  in  general  void, 
unless  made  with  the  assent  of  the  husband.     But   in  the  case  of  banishment, 
abjuration,  or  exile,  the  law  considers  the  husband  as  civilly  dead,  and  therefore 
permits  the  wife  to  contract,  and  sue  or  be  sued  as  a.  feme  sole;  for  it    would 
be  unreasonable  that  she  should  be    remediless  on  her  part,  and   equally   hard 
upon  her  creditors,  who  not  having  any  remedy  against  the  husband,  should  be 
without  remedy  against  the   wife.(w)  (322)    And  an  action  lies  against  a  feme 
covert,  though  the  banishment  be   only  for  a  limited  time  :  this  was  determined 
in  the  case  of  Sparrow  v.  Comakers,  (x)  which  was  an  action  upon  a  note  of 
101.  given  by  a  married  woman,  who  kept  a  public-house,  for  some  malt.     The 
defence  relied  on  was  the  defendant's  coverture.     But,  upon  the  trial,  the  plain- 
tiff proved  that  her  husband  had  been  transported,  and  his  time  was  not  expired. 
The  question  was,   whether  she  was  liable.     Yates,  Just,    thought  that  the 
Court  must  consider  the  transportation  as  suspending  her  disability.     A  ver- 
dict was  accordingly  found  for  the  plaintiff. 

*The  principle  of  this  rule  of  law   has  also  been     extended  to   cases  where 
the  husband  has  resided  abroad,  without  any  probability  of  returning  to    Eng- 


(v)   Candell  v.  Shaw,     4  Term   Rep.  361.  Rep.  400.     Mo.85.     1  Bulst.  140.     3  Bulst. 

Beard  and  Wife  v.  Webb,  2  Bos.  &  Pull.  93.  188.     Bac.  Abr.  tit.  Baron  &  Feme,  M. 

(to)  Bro.  Abr.  tit.  Baron  et  Feme,  pi.  66.  (.i)  Coram  Yates,  Just,  on  the  Northern 

Lady  Belknap's  case,  1  H.  4. 1.  p.  12.     2  H.  Circuit,  cited  in  1  Term  Rep.  6. 
4.  f.  7.  a.    Co.  Lit.  132.  b.   133.  a.     I  Rol. 


connected  with  her  business  as  a  sole  trader.  M'Dowall  v.  Wood,  2  Nott  <$•  M'Cord,  242. 
But  it  is  necessary  that  she  be  described,  in  the  bond,  as  a  sole  trader;  and  in  case  of  a 
suit  against  her,  on  such  bond,  that  fact  must  be  alleged  ;  otherwise,  the  proceedings  will 
be  void.  Wallace  v.  Rippon,  2  Bay,  112.  These  privileges  are  conferred  by  statute.  In 
Pennsylvania  also,  similar  privileges,  under  similar  restrictions,  are,  by  statute,  granted 
to  femes  covert.     Burke  v.    Winkle,  2  Serg.  &  R.    189.     See  Valentine  v.   Ford,   2  Browne, 

193. 

(222)  The  law  seems  to  be  well  settled,  that  when  the  wife  is  left  by  the  husband  with- 
out support,  and  has  traded  as  a  feme  sole,  and  obtained  credit  as  such,  she  ought  to  be 
liable  for  her  debts;  and  the  law  is  the  same,  whether  the  husband  is  banished  for  his 
crimes,  or  has  voluntarily  abandoned  his  wife.  Rhea  v.  Rhenner,  1  Peters,  105,  108. 
See  Wright  v.  Wright's  Ex.  2  Des.  244.  Per  Rutledge,  Chancellor.  So,  where  a  feme 
covert  whose  husband  had  deserted  her  in  a  foreign  country,  and  who  had  thereafter 
maintained  herself  as  a  single  woman,  and  had  resided  in  the  commonwealth  for  live 
years,  the  husband  being  a  foreigner,  and  not  having  been  in  the  United  States  ;  it  was 
held,  that  she  mi<dit  sue  and  be  sued  as  a  feme  sole ;  and  that  her  release  would  be  a  valid 
discharge  of  any  judgment  which  she  might  recover.     Gregory  v.  Paul,  15  Mass.  Rep.  31. 

So,  where  a  feme  covert,  who,  by  the  cruelty  of  her  husband,  was  driven  from  his 
house,  without  any  means  of  support,  came  into  the  commonwealth,  and  maintained 
herself  there  for  more  than  twenty  years,  as  a  feme  sole,  the  husband  having  always 
been  a  citizen  and  resident  of  another  state,  and  having  since  her  expulsion,  married  and 
cohabited  with  another  woman  ;  it  was  held,  that  she  was  entitlad  to  sue  as  a  feme  sole. 
Abbot  v.  BayUy,  6  Pick.  89. 

*60U 


600  Of  Husband  and  Wife  ;  and  of  Contracts  made  [Part  III. 

land,  and  where  the  wife  has  represented  herself,  and  contracted  as  mfeme  sole. 
Thus,'in  the  case  of  Derry  v.  The  Dutchess  ot  Mazarine, (y)  which  was  an  ac- 
tion of  assumpsit,  brought  against  the  defendant,  for  wages  and  money  lent ; 
the  defendant  pleaded  coverture,  and  issue  thereupon.  And  notwithstanding 
there  was  very  strong  evidence  at  the  trial,  that  the  Duke  of  Mazarine,  the  de- 
fendant's husband,  was  alive  in  France,  the  jury  found  for  the  plaintiff;  because 
the  Dutchess  had  lived  in  England  for  20  years  as  a  feme  sole,  and  had  con- 
tracted continually  as  such  ;  and  he,  who  was  her  husband,  was  an  alien  enemy. 
It  was  moved,  on  behalf  of  the  Dutchess,  that  this  verdict  was  against  evidence 
and  law,  for  a  feme  covert  cannot  be  solely  charged  for  debts  and  contracts? 
without  divorce  and  alimony,  although  the  husband  be  a  foreigner.  But  by  Holt 
Ch.  J.  when  the  husband  is  an  alien  enemy,  and  under  an  absolute  disability  to 
come  and  live  here,  the  law  perhaps  will  make  the  wife  of  such  an  husband 
chargeable  as  a  feme  sole  for  her  debts  and  contracts. 

So,  in  Walford  v.  The  Dutchess  De  Pienne,(z)  which  was  an  action  of  as- 
sumpsit  for  goods  sold  and  delivered.  Plea  of  coverture.  The  evidence  in  sup- 
port of  this  plea  established  the  fact  of  marriage  ;  and  further  that  the  Duke, 
who  was  a  loreigner,  had  gone  abroad  in  the  year  1793,  and  had  not  since  re- 
turned ;  during  that  interval  the  Dutchess  had  kept  house,  and  paid  bills  for 
goods  furnished  on  her  own  account,  and  in  her  own  name  ;  but  the  witness 
who  proved  those  facts  said,  that  the  Duke,  on  his  going  abroad,  had  proposed 
to  remain  abroad  only  for  four  months,  and  as  the  witness  believed,  had  not 
abandoned  his  intention  of  returning  to  this  country,  though  he  had  not  yet  done 
so.  Lord  Kenyon  Ch.  J.  ruled,  that  the  defendant  was  liable.  His  lordship 
said,  "  The  present  case  came  within  the  principle  of  the  old  common  law, 
where  the  husband  had  abjured  the  realm.  If  the  husband  had  been  absent  for 
some  time,  and  then  returned  and  paid  bills  contracted  by  the  wife  in  his  ab- 
sence, and  again  left  the  kingdom,  he  should  hold  the  wife  not  liable  ;  but  here 
was  a  desertion  of  the  kingdom,  and  an  absence  of  some  years  ;(a)  he  was  no 
longer  domiciled  here,  and  in  the  interval  his  wife  was  supplied  with  those  ar- 
ticles ;  if  she  was  not  to  be  held  liable  for  debts  contracted  under  such  circum- 
stances, she  might  be  starved." 

So,  in  De  Gaillon  v.  V  Aigle,{b)  which  was  an  action  of  indebitatus  assumpsit 
for  money  paid,  &c.  The  defendant  pleaded  coverture  with  *John  Martin  Harel 
VAigle.  The  plaintiff  replied,  that  before  the  making  of  the  promises  and  un- 
dertakings in  the  said  declaration  mentioned,  and  from  thence  hitherto,  the  said 
John  Martin  Harel  VAigle  lived  and  resided  in  parts  beyond  the  seas,  out  of 
this  kingdom,  to  wit,  at  Hamburgh ;  and  that  during  all  that  time  the  said 
Victoire  Harel  VAigle  lived  in  this  kingdom  separate  and  apart  from  the  said 
John  Martin  Harel  VAigle,  and  followed  and  carried  on  the  trade  and  busi- 
ness of  a  merchant,  as  a  single  woman,  and  a  sole  trader,  to  wit,  at  Westmin- 


(y)   1  Ld.   Raym.    147.     But  see   2  Salk.         (a)  About  three  years. 
646.     2  Wils.  303. ;  and  1  Bos.  &  Pul.  339.         (6)  1  Bos.  &  Pul.  357. 
(2)  2  Esp.  Rep.  554.  587. 
*601 


Chap.  6.]     By  the  Wife  before  or  after  Marriage.     60 1 

ster,  &c.  ;  that  the  plaintiff  did  not  give  any  credit  to  the  said  John  Martin 
Hard  ISAigle,  but  traded  and  dealt  with  the  said  Victoirc  Hard  as  a  feme  sole, 
and  on  her  sole  credit ;  and  that  the  said  Victoirc  Harel  made  the  said  several 
promises  and  undertakings  in  the  said  declaration  mentioned,  as  such  feme  sole 
as  aforesaid. 

To  this  there  was  a  general  demurrer  and  joinder.  But  the  Court  held,  that 
the  defendant  was  personally  liable,  and  accordingly  gave  judgment  for  the 
plaintiff.  And  Buller  Just,  said,  "  There  is  another  set  of  cases  of  a  very 
different  nature  from  those  which  have  been  relied  on  by  the  defendant ;  but 
which  are  much  more  applicable  to  this  case.  The  first  of  these  is  the  Lady 
Belknap's  case :  (c)  now  let  us  see  if  any  sound  distinction  between  that  case 
and  this  can  be  maintained.  The  husband  there  was  banished,  but  it  is  not 
stated  whether  he  was  banished  for  one  year,  or  five  years,  or  for  life  :  it  was 
held  sufficient  that  he  was  in  banishment  at  the  time  when  Lady  Belknap's  con- 
tract was  made  ;  and  I  can  see  but  one  principle  on  which  the  case  could  have 
been  decided  ;  viz.  that  the  rights  known  to  exist  in  law  between  husband  and 
wife  were  not  interfered  with  by  allowing  the  wife  to  be  taken  in  execution  ;  as 
the  husband  was  banished  (though  it  be  not  stated  whether  for  life  or  not,)  the 
matrimonial  rights  during  his  banishment  were  at  least  suspended.  In  later 
times  the  cases  have  gone  further.  In  Sparrow  v.  Carruthers,(d)  it  was  shown, 
in  answer  to  evidence  of  coverture,  that  the  husband  was  transported  for  seven 
years  only,  and  after  that  time  was  expired,  he  had  a  right  to  return,  and  de- 
mand the  comfort  of  his  wife,  even  if  she  were  in  gaol ;  yet  the  husband  being 
abroad,  and  not  capable  of  enjoying  the  matrimonial  rights,  it  was  held  that 
the  disability  of  the  wife  was  suspended.  In  those  cases  the  husband  was 
sent  out  of  the  country  for  his  crimes,  whereas  here  the  husband  has  volunta- 
rily abandoned  his  wife,  and,  for  any  thing  that  appears,  never  was  in  England, 
and  perhaps  never  may  come  here.  The  wife  has  traded  as  a  feme  sole,  has 
obtained  credit  as  such,  and  ought  to  be  liable  for  her  debts."  And  Heath 
Just,  said,  "  I  am  of  the  same  opinion.  The  cases  of  banishment  and  trans- 
portation of  the  husband  are  directly  *in  point.  Besides,  it  is  for  the  benefit 
of  the  feme  covert  that  she  should  be  liable  to  an  action  in  such  a  case  as  this, 
otherwise  she  could  obtain  no  credit,  and  would  have  no  means  of  gaining  her 
livelihood.  The  husband,  perhaps,  never  was  in  England,  and  never  may  bo, 
so  that  this  case  is  not  at  all  like  those  which  proceeded  on  the  ground  of  a 
separate  maintenance." 

But  where  the  husband's  absence  is  merely  temporary,  the  wife  cannot  be 
sued  as  a  single  woman.  Thus,  in  the  case  of  Farrer  v.  The  Countess  Dowa- 
ger of  Granard,{e)  which  was  an  action  of  indebitatus  assumpsit  for  the  use 
and  occupation  of  certain  ready  furnished  lodgings.  The  defendant  pleaded 
coverture  ;  to  which  the  plaintiff  replied,  that  the  defendant's  husband  lived  and 


(c)  Ante,  599.  n.  w.  (0  1    New  Rep.  C.  B.  SO.    See  also  3 

(rf)  Ibid.  599.  Esp.  Rep.    18. 

'  r  *602 


602  Of  Husband  and  Wife  ;  and  of  Contracts  made  [Part  III. 

resided  \n*Ireland,  and  that  the  defendant  lived  in  England,  as  a  single  wo- 
man, and  as  such  single  woman,  promised,  &c.  The  Court  held  the  replica- 
tion bad  on  general  demurrer ;  the  terms  of  it  only  amounting  to  a  mere  tem- 
porary absence. 

4.  OF  CONTRACTS  FOR  NECESSARIES  FURNISHED  THE  WIFE  DURING 

MARRIAGE. 

The  husband  is  not  only  liable  to  the  debts  of  his  wife  before  marriage,  but 
is  also  obliged  to  maintain  his  wife  after  marriage,  and  find  her  with  necessa- 
ries, as  meat,  drink,  clothes,  &c.  suitable  to  his  estate  and  condition  inlife.(223) 
And  though  in  general  the  Avife  has  no  power  to  bind  her  husband  by  any  con- 
tract of  hers,  without  his  assent  express  or  implied,  yet  it  is  settled,  that  whilst 
she  cohabits  with  her  husband,  he  shall  be  chargeable  for  all  contracts  made 
by  her  for  necessaries  ;  and  his  assent  thereto  shall  be  presumed  on  account 
of  the  cohabitation,  unless  the  contrary  appear.  Such  contracts,  however, 
are  considered  in  law  as  the  contracts  of  the  husband,  and  he  alone  is  charge- 
able.^) So,  where  the  husband  leaves  his  wife,  or  refuses  to  permit  her 
to  live  with  him  ;  or  if  he  treat  her  so  ill  as  to  oblige  her  to  depart  from  his 
dwelling  ;  in  either  of  these  cases  the  law  makes  the  husband  liable  to  her  con. 
tracts  for  necessaries.  This  was  settled  in  the  case  of  Bolton  v.  Prentice,  (h) 
which  was  an  action  of  assumpsit  for  goods  sold  and  delivered  to  the  defen- 
dant's wife  ;  the  case  appeared  to  be  that  the  defendant  and  his  wife  had 
formerly  lodged  at  the  plaintiff's  house,  and  the  plaintiff  furnished  her  with 
goods  ;  and  the  defendant  finding  the  plaintiff  had  helped  her  to  pawn  her 
watch,  and  suspecting  he  confederated  *with  her,  left  the  lodgings,  after  paying 
the  plaintiff  his  bill,  and  forbidding  him  ever  trusting  her  again.  After  this,  the 
defendant  and  his  wife  cohabited  together  for  a  year,  when,  without  any  cause 
appearing,  he  left  her,  locked  up  her  clothes,  and,  upon  her  finding  him  out, 
refused  to  admit  her,  and  struck  her,  and  declared  he  would  not  maintain  her, 
or  pay  any  body  that  did.  In  this  distress  she  borrowed  clothes  of  her  friends, 
and  applied  to  the  plaintiff,  who  furnished  her  with  necessaries  according  to 
the  defendant's  degree  ;  which  the  defendant  refusing  to  pay  for,  this  action  was 
brought,  and  upon  trial,  the  jury  found  for  the  plaintiff.  And  upon  motion  for 
a  new  trial,  the  Court  held,  that  the  verdict  was  right ;  for  whilst  they  were  at 


(<r)  Vide  Manby   v.    Scot,  1  Sid.    123.  9.  1     title,  H. 
Lev.  4.  1  Mod.  12S.  1  Salk.  118.  Com.  Dig.         (h)  2  Stra.  1214. 
tit.   Baron  and  Feme.  Q,.   Bac.   Abr.   same 


(223)  Where  husband  and  wife  separate,  and  live  apart,  and  no  provision  is  made  for 
the  maintenance  of  the  wife,  the  husband  is  liable  for  necessaries  furnished  her,  suitable  to 
her  condition  in  life.  Lockwood  v.  Tliomaa,  12  J.  R.  248.  It  has  been  made  a  question, 
whether  the  circumstance  of  the  wife  having  a  separate  estate  of  her  own,  will  affect  the 
husband's  liability.  Id.  Of  the  liability  of  the  husband,  for  necessaries  furnished  the  wite, 
see  further  in  WCutchenv.  M'Gahay,  11  J.  R.  281.  M'Gahay  v.  Williams,  12  J.  R.  Me- 
dina, v.  Plummet;  4  Greenl.  258. 
*603 


Chap.  6.]     By  the  Wife  before  or  after  Marriage.     603 

the  plaintiff's,  there  was  a  particular  reason  for  the  particular  prohibition  ;  yet 
the  causeless  turning  her  away  destitute  afterwards,  gave  her  the  general  credit 
again ;  and  if  a  husband  should  be  allowed,  under  the  notion  of  a  particular 
prohibition,  to  destroy  her  obtaining  credit  in  one  place,  he  may,  in  the  same 
manner,  prevent  it  with  all  people  she  is  acquainted  with.  He  appears  to  be 
a  wrong  doer,  and  therefore  has  no  right  to  prohibit  any  body.  They  distin- 
guished this  case  from  that  of  Manly  v.  Scott,  1  Sid.  109.,  for  there  the  wife 
was  guilty  of  the  first  wrong  in  eloping. 

So,  in  the  case  of  Thompson  v.  Hervey,(i)  which  was  an  action  brought 
against  the  defendant  for  lodging  and  necessaries  for  his  wife,  during  her  resi- 
dence at  Bristol,  (which  her  health  absolutely  required  ;)  wherein  a  verdict 
had  been  given  for  the  plaintiff,  against  Mr.  Hervcy.  It  appeared  from  Lord 
Mansfield's  reports  of  the  evidence,  that  she  had  herself  paid  part  of  the  mon- 
ey, viz.  what  was  due  to  the  plaintiff  for  the  former  part  of  the  time ;  and  that 
she  had  a  pension,  during  pleasure,  from  the  crown,  determinable  at  the  will  of 
the  crown,  of  300Z.  a  year,  granted  to  her  in  her  own  name,  but  not  by  any 
agreement  or  otherwise  appropriated  at  all  to  her  own  use ;  that  at  her  return 
from  Bristol,  her  husband  shut  his  doors  against  her ;  that  Mr.  Hervey  had 
never  made,  or  agreed  to  make,  any  separate  allowance  to  her,  or  had  con- 
tributed any  thing  towards  her  support,  since  he  had  so  shut  his  doors  against 
her,  nor  had  she  any  use  of  his  table,  servants,  or  equipage  ;  and  there  was 
evidence  given  of  his  being  reputed  to  have  an  income  of  about  1800/.  per  an- 
num.  The  Court  held,  that  the  husband  was  liable  to  this  action,  and  said  ; 
"  Here  is  no  agreement  for  a  separation  ;  but  he  has  sent  her  adrift,  by  shut- 
ting his  doors  against  her.  He  allows  her  no  separate  maintenance,  nor  any 
support  at  all.  And  there  is  no  pretence  of  this  lodging  and  other  support 
provided  for  her  by  the  plaintiff,  being  improper  for  her  degree  and  condi- 
tion of  life.  And  as  she  had  no  maintenance  from  her  husband,  nor  admit- 
tance into  his  *house,  she  was  obliged  to  procure  lodging  and  maintenance 
somewhere  else.  Every  man  is  obliged  to  maintain  his  wife.  The  pension  is 
only  a  voluntary  grace  and  bounty  of  the  crown,  and  only  during  the  pleasure 
of  the  crown ;  not  what  any  creditor  of  hers,  even  for  her  necessary  subsistence 
suitable  to  her  degree  and  rank  of  life,  can  be  supposed  to  give  her  credit  upon." 

So,  in  the  case  of  Robison  v.  Gosnold,{k)  where  it  appeared  that  a  husband 
discovering  his  wife  to  be  a  very  lewd  woman,  went  away  from  her  ;  and  she, 
after  having  lived  several  years  with  an  adulterer,  was  received  into  the  plain- 
tiff's house,  who  entertained  her  as  the  husband's  wife.  And  this  action  be- 
ing an  indebitatus  assumpsit  against  the  husband,  for  lodging  and  dieting  the 
wife,  Holt  Ch.  J.,  at  nisi  prius,  held,  that  let  the  woman  be  ever  so  vicious, 
yet,  while  she  will  cohabit  with  the  husband,  he  is  bound  to  provide  necessaries 
for  her,  and  is  liable  to  an  action  at  the  suit  of  those  who  may  furnish  her  with 
them  ;  for  his  bargain  was  to  take  her  for  better  for  worse.     In  like  manner  it 

(i)  4  Bur.  2177.  (t)  6  Mod.  171.  1  Salk.  119.  S.  C. 

*G04 


604  Of  Husband  and  Wife  ;  and  of  Contracts  made  [Part  III. 

is,  if  the  husband  turns  his  wife  away  for  her  wickedness,  he  remains  still  charge- 
able for  her  necessaries.  But  if  the  wife  leaves  her  husband,  they  that  trust 
her  after  it  is  notorious  that  she  has  left  him,  do  it  at  their  peril,  and  shall  not 
thereupon  charge  the  husband. 

So,  in  the  case  of  Harris  v.  Morris, (I)  which  was  an  action  of  assump~ 
sit  brought  to  recover  a  sum  of  money,  claimed  by  the  plaintiff  for  meat,  drink, 
and  other  necessaries,  furnished  to  the  defendant's  wife.  The  plaintiff 's  coun- 
sel stated,  that  the  wife  having  been  turned  out  of  doors  by  the  defendant, 
had  taken  shelter  with  the  plaintiff,  where  she  was  entertained,  and  furnished 
with  necessaries.  The  defendant  denied  that  she  was  turned  out,  but  relied  on 
her  having  been  seen  in  improper  familiarities  with  a  person  living  near  her 
house,  though  he  could  produce  no  proof  of  actual  adultery  ;  that  she  had 
formerly  eloped  for  adultery,  and  been  in  the  Magdalen  Asylum,  but  that  he 
had  afterwards  taken  her  back ;  that  he  had  advertised  her  in  the  newspapers, 
and  cautioned  persons  from  trusting  her  on  his  credit ;  lastly,  that  he  was 
a  journeyman  tradesman,  and  incapable  of  making  her  any  allowance.  In  an- 
swer to  the  last  matter  relied  on  by  the  defendant,  it  was  proved,  that  the  de- 
fendant had  said,  that  his  wife  had  ten  guineas  a  year,  independent  of  him, 
and  that  he  could  allow  her  5s.  per  week  addition.  This  was  pressed  by 
the  plaintiff's  counsel,  as  having  been  ruled  by  Lord  Mansfield,  to  be  evi- 
dence of  the  husband's  ability  to  that  extent.  Lord  Kenyon  Ch.  J.  said  ; 
"  The  defendant  has  urged  several  matters  in  bar  of  this  action,  but  none  appear 
to  me  to  amount  to  a  legal  defence.  With  respect  to  her  having  been  for- 
merly guilty  of  adultery,  and  having  been  in  the  Magdalen  Asylum,  though 
an  adulterous  *elopement  will  prevent  the  husband  from  being  liable  for  articles 
furnished  to  the  wife  during  the  term  of  her  elopement,  that  is  no  answer  now. 
The  husband  has  taken  her  back,  and  she  was  from  that  time  entitled  to 
dower  ;  she  was  sponte  retracta,  and  of  course  entitled  to  maintenance  during 
coverture,  if  her  husband  turned  her  out  of  doors.  The  next  defence  is,  that 
he  advertised  her  in  the  newspaper,  and  forbid  persons  to  trust  her ;  that  can- 
not avail  him ;  for  if  he  put  her  out  of  doors,  though  he  advertised  her,  and 
cautioned  all  persons  not  to  trust  her ;  or  if  he  even  gave  particular  notice  to  in- 
dividuals not  to  give  her  credit,  still  he  would  be  liable  for  necessaries  furnished 
to  her,  for  the  law  has  said,  that  where  a  man  turns  his  wife  out  of  doors,  he 
sends  with  her  credit  for  her  reasonable  expences.  With  respect  to  the  offer 
of  five  shillings  per  week,  I  agree  with  what  my  Lord  Mansfield  has  said, 
"  that  it  is  evidence  to  go  to  the  jury  of  the  husband's  liability  ;  but  the  jury 
ought  to  consider  the  terms  upon  which  it  was  offered."  A  juror  was  with- 
drawn by  consent.  So,  in  the  case  of  Hodges  v.  Hodges,  (m)  which  was  an 
action  of  assumpsit  brought  by  the  plaintiff  (who  was  the  son  of  the  defendant), 
to  recover  a  sum  of  money  for  the  board  and  lodging  of  his  mother,  the  defen- 
dant's wife.     The  plaintiff's  case  was,  that  the  wife  had  been  compelled  to 

(Z)4Esp.  Rep.  41.  (w)  1  Esp.  Rep.  441. 

*605 


Chap.  6.]     By  the  Wife  before  or  after  Marriage,        605 

leave  her  husband's  house  in  consequence  of  gros3  ill-treatment  and  cruelty. 
Evidence  was  given  to  this  effect,  but  it  appeared,  that  she  had  voluntarily 
left  the  defendant's  house,  though  it  proceeded  from  apprehensions  of  his  ill- 
treatment  and  barbarity.  It  was  contended,  for  tbe  defendant,  that  though 
in  case  the  husband  turns  the  wife  out  of  doors,  he  sends  with  her  credit  for 
necessaries,  the  rule  of  law  did  not  apply,  where  she  voluntarily  quitted  it. 

Lord  Kenyon  Ch.  J.  said,  "  That  where  a  wife's  situation  in  her  husband's 
house  was  rendered  unsafe  from  his  cruelty  or  ill-treatment,  he  should  rule 
it  to  be  equivalent  to  a  turning  her  out  of  the  house,  and  that  the  husband  should 
be  liable  for  necessaries  furnished  to  her  under  those  circumstances." 

So,  in  the  case  of  Ewers  v.  Hulton,(?i)  which  was  a  similar  action  to  the 
last.  And  it  was  proved,  that  the  defendant  had  treated  his  wife  with  much 
barbarity,  and  turned  her  out  of  doors ;  that  the  plaintiff  received  her  into  his 
family,  and  furnished  her  with  necessaries,  for  which  the  present  action  was 
brought.  There  was  also  evidence  given,  that  some  time  after  the  wife  had 
been  turned  out,  she  returned  and  rung  at  the  bell ;  the  defendant  went  down 
to  the  door,  and  refused  to  admit  her.  It  was  also  proved,  that  the  wife  had 
had  between  300/.  and  400/.  fortune  when  she  married.  The  defence  was, 
that  the  absence  of  *the  wife,  for  part  of  the  time,  was  an  elopement :  as  she 
might  have  returned  to  her  husband's  house,  2dly,  That  a  separate  mainte- 
nance was  secured  her  some  time  after  her  leaving  her  husband's  house.  To 
prove  which,  the  defendant  gave  in  evidence  a  deed  of  separation  executed  by 
the  husband  and  wife ;  but  it  was  not  executed  by  the  wife's  trustee,  who  was  a 
party  to  it. 

Lord  Eldon  Ch.  J.  said,  "  There  is  no  doubt  of  the  law,  that  where  a  hus- 
band, either  from  ill-treatment,  compelled  his  wife  to  leave  his  house,  from 
motives  of  personal  safety,  or  turned  her  out  of  doors,  that  any  person  who 
afforded  her  protection,  and  furnished  her  with  necessaries  correspondent  to  his 
rank  and  situation  in  life,  could  compel  the  husband  to  pay  for  them,  but  that 
in  ascertaining  what  suited  his  circumstances,  the  fortune  which  the  wife 
brought  could  not  enter  into  the  consideration  ;  the  jury  were  to  regulate  their 
verdict  by  what  the  husband's  circumstances  were  when  the  separation  took 
place.  As  to  the  question  of  elopement,  it  did  not  appear  clearly,  whether 
the  term  elopement  in  the  books,  meant  an  adulterous  elopement  or  not ;  here 
there  was  no  imputation  of  an  adulterous  intercourse  ;  and  with  regard  to  the 
deed  of  separation  produced,  it  was  waste  paper,  it  was  binding  in  no  degree ; 
it  was  executed  by  the  husband  and  wife,  but  the  wife  had  no  will  of  her  own  ; 
she  could  execute  no  deed ;  she  could  not  covenant  with  her  husband  ;  she 
could  only  contract  by  the  means  of  a  trustee,  who  became  bound  for  the  per- 
formance of  what  she  contracted  to  do ;  here  he  had  not  executed  the  deed. 
The  husband  could  not  therefore  be  sued,  and   the   deed  was  of  no  avail." 


(n)  3Esp.  Rep.  245.     See  also  Shepard  v.  Mackmd,  3  Campb.  Rep.  326. 

74  *606 


606  Of  Husband  a?id  Wife  ;  and  of  Contracts  made  [Part  III. 

His  lordship,  therefore,  concluded  with  observing  ,  "  that  the  wife  having  solicit- 
ed to  be  received  into  the  defendant's  ^house,  and  being  refused  by  him,  he  was 
bound  to  provide  her  with  necessaries,  and  that  the  deed  of  separation  furnished 
him  With  no  defence." 

But  no  ill-treatment,  short  of  personal  violence,  or  such  as  will  induce  a  rea- 
sonable fear  of  it,  will  justify  a  third  person  in  providing  a  maintenance  for  the 
wife,  so  as  to  entitle  him  by  action  at  law  to  recover  against  the  huband.(o) 
Where  a  husband  goes  abroad  and  leaves  his  wife,  who  dies  in  his  absence,  a 
third  person,  who  voluntarily  pays  the  expences  of  her  funeral  (suitable  to  the 
rank  and  fortune  of  the  husband)  though  without  the  knowledge  of  the  husband, 
may  recover  from  him  the  money  so  laid  out,  especially  if  such  third  person  be 
a  relation  of  the  wife,  (p) 

So  an  action  of  assumpsit  lies  against  a  husband  for  money  lent  to  his  wife 
upon  his  express  assent.  But  in  such  action  the  money  must  be  stated  to  have 
been  lent  to  the  husband  alone. (q) 

*In  actions  for  necessaries,  it  should  be  observed,  that  in  all  these  cases  the 
things  supplied  to  the  wife  must  be  proved  to  be  necessaries  suitable  to  the 
estate  and  condition  of  the  husband  ;  for  if  they  be  not,  he  will  be  discharged. 
And  though  a  husband  is  bound  to  provide  necessaries  for  his  wife  as  long  as 
she  cohabits  with  him,  or  whilst  he  absents  himself  from  her,  or  she  is  obliged 
to  live  apart  from  him  on  account  of  his  ill  usage  to  her,  yet  if  she  voluntarily 
departs  from  his  dwelling,  and  lives  apart  from  him  without  his  consent ;  or  if 
the  husband  absolutely  declares  his  dissent  that  she  shall  not  be  trusted ;  any 
person  having  notice  of  this  dissent,  trusts  her  at  his  peril. 

Thus,  in  the  case  of  Manby  v.  Scott,  (r)  where  the  wife  of  the  defendant  de- 
parted from  him  without  his  consent ;  and  during  her  absence  the  husband  pro- 
hibited several  persons,  and  among  the  rest  the  plaintiff,  from  trusting  her  :  and, 
after  an  absence  of  twelve  years,  she  made  a  request  to  cohabit  again  with  her 
husband,  but  he  refused  to  receive  her.  The  plaintiff  sold  her  silk  and  velvet 
to  the  value  of  40Z.  which  were  found  suitable  to  the  degree  of  her  husband. 
It  was  solemnly  determined  by  eight  judges  against  three,  that  the  husband 
was  not  chargeable  in  this  case  ;  for  the  prohibition,  here  stated,  took  away  all 
presumption  of  any  consent  of  the  husband  to  the  contract,  either  expressed  or 
implied. 

So,  in  the  case  of  Ether ington  v.  Parrot,(s)  which  was  an  action  of  indebi- 
tatus assumpsit  for  goods  sold  and  delivered.  At  the  trial  before  Holt  Ch.  J. 
at  Guildhall,  the  evidence  to  charge  the  defendant  was,  that  the  goods  were 
taken  up  by  the  defendant's  wife  to  make  her  clothes,  and  that  they  cohabited 
together  ;  but  on  the  defendant's  side  it  was  given  in  evidence,  that  his  wife 
was  an  extravagant  woman,  and  used  to  pawn  her  clothes  for  money  to  buy 
drink  ;  that  she  pawned  a  suit  of  clothes,  which  cost  71.   for  1Z.  8s.  and  when 


(o)  Horwoodv.  Heffer,  3  Taunt  Rep.  421.         (r)   1  Sid.  109.  1  Lev.  4.  1  Mod.  128.  S.  C. 
(p)  1  H.  Bl.  90.  (*)  2  Ld.  Raym.  1006.  1  Salk.  118. 

(<v)  3  Wils.  388.  2  Bl.  Rep.  872. 

;C07 


Chap.  6.]     By  the  Wife  before  or  after  Marriage.      607 

her  husband  redeemed  them,  pawned  them  again  ;  that  at  the  time  of  buying 
these,  she  had  very  good  clothes  ;  that  she  had  bought  clothes  of  the  plaintiff 
before,  and  her  husband  had  paid  for  them  ;  but  when  he  paid  for  them,  he 
gave  notice  to  the  plaintiff's  servant,  who  received  the  money,  that  his  master 
should  trust  her  no  more,  which  he  promised  not  to  do.  And  by  Holt  Ch.  J. 
"  If  a  husband  turns  away  his  wife,  he  gives  her  credit  wherever  she  goes,  and 
must  pay  for  necessaries  for  her  ;  but  if  she  runs  away  from  him,  he  shall  not 
be  liable  to  any  of  her  contracts,  for  it  is  the  cohabitation  that  is  an  evidence  of 
the  husband's  assent  to  contracts  made  by  his  wife  for  necessaries.  But  if 
the  husband  has  solemnly  declared  his  dissent,  that  she  shall  not  be  trusted, 
any  person  that  has  notice  of  this  dissent,  trusts  her  at  his  peril  after  ;  for  the  hus- 
band is  only  liable  upon  account  of  his  own  assent  to  the  contracts  of  his  wife, 
of  which  assent  cohabitation  causes  a  presumption  ;  and  when  he  has  declared  the 
contrary,  there  is  *no  longer  room  for  such  a  presumption.  For  the  wife  has 
no  power  originally  to  charge  her  husband,  but  is  absolutely  under  his  power 
and  government ;  and  must  be  content  with  what  he  provides,  and  if  he  does 
not  provide  necessaries,  her  remedy  is  in  the  spiritual  court.  But  here  were 
sufficient  necessaries  provided,  and  also  the  husband  had  forbidden  any  trusting 
her,  and  notice  to  the  defendant's  servant  usually  employed  by  him  in  his  trade, 
was  a  good  notice  to  his  master  the  plaintiff;  and  he  cannot  charge  the  defen- 
dant."    Therefore  he  was  nonsuited. 

But  in  the  case  of  Rawlins  v.  Vandyke, (t)  which  was  an  action  of  assump- 
sit for  the  lodging  of  the  defendant's  wife  and  children  :  and  for  goods  sold  and 
delivered  to  them.  The  plaintiff  proved  the  lodging  of  the  parties  at  his  house, 
and  the  furnishing  of  linen  drapery  goods  to  the  wife  and  children  of  the  de- 
fendant ;  which  appeared  to  be  necessaries  for  them.  The  defence  was,  that 
the  defendant  and  his  wife  lived  separate  ;  that  he  allowed  her  ten  guineas  a 
week  ;  that  the  plaintiff  Acre?  notice  of  those  circumstances,  and  not  to  trust  her  ; 
but  the  notice  not  to  trust  her,  was  said  by  the  plaintiff  to  have  taken  place  af- 
ter the  bill  for  the  goods  had  been  delivered.  It  was  further  contended,  that 
there  was  no  evidence  that  the  husband  had  refused  to  receive  her.  But  it 
was  given  in  evidence  that  Mr.  Vandyke,  the  defendant,  had  supported  a  sepa- 
rate establishment  for  his  wife  at  Bath,  where  he  had  visited  her  once,  and  at 
Osborn's  Hotel  in  London  ;  and  paid  the  bills  at  both  places.  Lord  Eldan  Ch. 
J.  said :  "  The  defendant's  counsel  relies  on  his  discharge  from  this  action, 
first,  on  the  ground,  of  his  living  apart  from  his  wife  ;  and  there  being  no  evi- 
dence that  he  refused  to  receive  her.  My  conception  of  the  law  is  this  :  that  if 
a  man  will  not  receive  his  wife  into  his  house,  he  turns  her  out  of  doors  ;  and  if 
he  does  so,  he  sends  with  her  credit  for  her  reasonable  expences.  In  this  case 
Mr.  Vandyke  has  lived  apart  from  his  wife,  but  he  has  paid  her  expences  in- 
curred in  that  situation  in  other  places,  and  has  therefore  given  her  credit. 
The  second  ground  taken  by  Mr.  Vandykes  counsel  is,  that  he  gave  herase- 


(«)  3  Esp.  Rep.  250. 

*608 


608  Of  Husband  and  Wife  ;  and  of  Contracts  made  [Part  III. 

parate  maintenance  ;  informed  the  tradesman  of  that  fact,  and  gave  him  notice 
not  to  trust  her.     Separation,  with  a  separate  maintenance,  was  formerly  held 
sufficient  to  charge  the  wife,  but  it  is  not   so  held  now ;  the  wife  is  not  now 
liable ;  but  it  is  a  different  thing  to  hold  the  wife  not  to  be  liable,  and  the  hus- 
band to  be  liable.     The  object  of  this   action  is  to  make  the   husband  liable. 
If  the  husband  gives   express    notice  to  a  tradesman   not  to   trust   his  wife,  he 
shall  not  be  charged  for  goods  furnished  to  his  wife :  and  if  a  tradesman  has 
notice  of  a  separate  maintenance  given  to  the  wife,  it  is  the  doctrine  of  Lord 
Holt,  that  that  shall  be  notice  of  an  express  dissent  on  the  part  of  the  husband, 
and  he  shall  not  be  charged ;  but  where  the  tradesman's  demand  is  for  neces- 
saries, *it  is  incumbent  on  the  husband    to  show   that    the  tradesman   knew  of 
the  separate  maintenance.     The  question  therefore  will  be,  did  Mr.    Vandyke 
dissent  from  furnishing  his  wife  with  the  things  charged  1  I  am  of  opinion,  that  for 
every  thing  furnished  after  notice  of  the  separate  maintenance,  that  that  amount- 
ed to  a  dissent ;  and  for  those,  that  the  defendant  is  not  liable.     With  respect 
to  the  things  furnished  to  the  children,  I  do  not  lay  it  down   as  the  law,  that 
where  the  children  live  away  from  the  father,  that  he   is  liable,   because  the 
things  furnished  are  necessaries :   as  a  father,   he  has  a  right  to  the  custody  of 
his  children,  and  may  obtain  possession  of  their  persons  by  habeas  corpus;  but 
where  he  does  not   assert  that  right,  and  suffers  them  to  remain  with  their  moth- 
er, I  think  he  thereby  constitutes  her  as  his   agent,  and  authorizes  her  to   con- 
tract those  debts  for  clothing  and  other  necessaries  ;  but  this  I  think  should  be 
left  to  the  jury." 

Where  a  married  woman  elopes  from  her  husband,  and  afterwards  con- 
tracts a  debt,  not  only  the  husband  is  not  liable,  but  the  wife  cannot  be  sued 
either  alone,  or  jointly  with  her  husband.  Thus,  in  the  case  of  Haichett  and 
another  v.  Baddeley,{u)  which  was  an  action  of  assumpsit  against  the  defen- 
dant by  the  name  of  Sophia  Baddeley,  (without  any  addition)  for  money  due 
to  the  plaintiffs  as  coachmakers  for  work  and  labour  and  materials,  &c. 
The  defendant  pleaded  non  assumpsit,  and  also  that  she  was  married  to  one 
Robert  Baddeley, hex  husband,  who  was  then  alive.  The  plaintiffs  replied,  protes- 
tando  as  to  the  marriage,  that  the  defendant,  before  the  cause  of  action 
accrued,  eloped  from  the  said  Robert  Baddeley,  and  hath  ever  since  lived  sep- 
arate from  him,  and  that  the  work  was  done  on  her  credit  only.  The  defend- 
ant not  rejoining  in  due  time,  judgment  was  signed  against  her  for  want  of  a 
rejoinder:  but  it  was  afterwards  moved  in  arrest  of  judgment  that  the  replication 
was  bad  on  the  following  grounds  ;  1st,  Supposing  the  facts  to  be  true,  it  does 
not  therefore  follow  that  she  is  liable  to  be  sued  alone.  2dly,  It  should  not 
have  alleged  that  she  eloped  but  that  she  lived  in  adultery.  So  is  Rastell's 
Entries,  230.  pi.  9.  in  bar  of  dower,  and  Robins.  Entr.  260.  3dly,  It  should 
have  stated  the  cause  of  action  to  have  been  for  necessaries.  The  Court  ar- 
rested the  judgment,  and  De  Grey  Ch.  J.  said :  "  The  word  Elopement  is  not  a 


(«)  2  Bl.  Rep.  1079.     Serf  vide  Coxv.  Kitchen,  1  Bos.  &  Pul.  33S. 
*6O0 


Chap.  6.]       By  the  Wife  before  or  after  Marriage-       609 

legal  term,  nor  has   any  express  meaning  in  the  law.     It  is  not  to  be  found  in 
Bracton,  Britton,  or  Fleta  ;  nor  is  used  in  the  statute  of  Westm.  2.  The  Mirror 
indeed  has  the  word  elopa  ;  but  in  a  different  sense  :    and  none  of  the    dictiona- 
ries or  etymologists  explain  the  word,  except  Blount  and  Jacob.  Lord  Coke  is  the 
first  that  I  remember  to  have  mentioned  it,  and  he  speaks  in  2  Inst.  435.  of  a  wife's 
eloping  and  remaining  with   an  adulterer.     The  modern  books  never   speak  of 
elopement  but  in  a  criminal  view.     *But  it  is  quite  indifferent,  as  to  forming  my 
opinion  on  this  case,  in  what  sense  the  word  is  to  be  taken.     The  present  case 
is  not  that  of  a  woman  having  a  separate  maintenance,  and  living  apart  from 
her  husband  by  his  express  permission  :  but  of  a  wife  departing  from  her  hus- 
band's house,  or,  if  you  please,  eloping,  without  his  consent.     She  is  in  every 
view,  even  in  respect  of  dower  (unless  adultery  be  proved)  zfemc  covert ;  and  as 
such  can  neither  sue  nor  be  sued  alone.     This  is  the  general  law.     The  excep- 
tions to  this,  are,  1st,  local  customs,  as  in  the  city  of  London,    where  a  feme 
covert,  being  a  sole  trader,  may  be  sued.     But  there  the  husband  must  be  join- 
ed in  the  action  at  the  outset,  for  conformity.     2dly,  The  wife  of  an  exile,  one 
abjuring  the  realm,  or  perhaps  one  professed,  who  are  looked  upon  as  dead 
in  law.     3dly,  The   same  law  has  been  extended  to  cases  somewhat  like  the 
former,   as  the  Duchess    of  Mazarine's  case,  whose  husband  lived  in  France. 
All  these  are  by  the  acts  of  the  husband  ;  but  no-act  of  the  wife  can  ever  make 
her  liable  to  be  sued  alone.     If  she  can  be  sued,  she  can  sue,  acquire  property, 
release  actions,  execute  deeds,  &c.  which  would  overturn  first  principles.     On 
the  whole,  therefore,  I  am  clearly  of  opinion  the  defendant  is  not  in  a  capacity 
to  be  sued  alone." 

So,  if  husband  and  wife  be  separated  by  mutual  consent,  and  the  husband 
secures  to  her  a  separate  allowance  by  deed,  and  this  is  generally  known  in  the 
place  where  the  husband  resides,  he  is  not  liable  for  necessaries  furnished  his 
wife  in  a  strange  place  where  the  circumstances  of  the  separation  arc  wholly 
unknown.  Thus,  in  the  case  of  Todd  v.  Stokcs,(r)  which  was  an  action 
brought  by  the  plaintiff,  being  an  apothecary,  for  medicines  found  for  the  defen- 
dant's wife.  It  was  proved,  that  the  defendant  and  his  wife  had  been  separat- 
ed by  consent  for  five  years ;  and  that  upon  the  separation  the  defendant 
signed  articles  to  certain  trustees,  by  which  he  obliged  himself  to  allow  his  wile 
twenty  pounds  a  year,  which  he  had  done  accordingly  ever  after  ;  that  the 
plaintiff,  when  he  furnished  the  defendant's  wife  with  these  medicines,  did  not 
know  that  she  was  a  married  woman,  &c.  And  it  was  ruled  by  Holt  Ch.  J., 
that  the  defendant  was  not  bound  to  pay  the  plaintiff's  bill.  For  though  the 
plaintiff  had  not  personal  notice  of  their  separation,  and  though  it  was  not  the 
general  reputation  in  London,  where  the  plaintiff  lived,  that  the  defendant  and 
his  wife  were  separated,  yet  since  it  was  the  general  reputation  in  the  place 
where  the  defendant  lived,  and  that  for  five  years  past,  it  was  enough  to  exempt 
the  defendant's  wife  from  being  capable  to  charge   the  defendant,   though    for 

(y)  1  Lord   Raym.  444.     12  Mod.  244.  S.  C.    See  abo  4  Campb.  Rep.  70.  and  4  Barn. 
&  Aid.  252.  S.  P. 

*610 


610  Of  Husband  and  Wife  ;  and  of  Contracts,  made  [Part  III. 

necessaries.  But  if  the  wife  had  come  immediate  ly  from  her  husband  after  the 
separation,  before  it  could  have  been  publicly  and  generally  known,  and  had 
taken  up  necessaries  upon  credit,  the  husband  would  have  been  liable. 

#But  if  the  husband  in  such  case  fails  to  pay  the  stipulated  allowance,  he  is 
liable  for  necessaries  furnished  his  wife.    Thus,  in  the  case  of  Nurse  v.  Craig,(w) 
which  was  an  action  of  indebitatus  assumpsit  for  meat,  drink,  washing,  lodging, 
and  other  necessaries,  with  counts  for  money  lent  and  advanced,  paid,  laid  out 
and  expended,  had  and  received,  and  on  account  stated.     At  the  trial,  before 
Sir  James  Mansfield  Ch.  J.,   it  appeared  in  evidence,  that   the  defendant  and 
his  wife,  having  agreed  to  separate  from  each  other  in  the  year  1802,  a  deed  of 
separation  was  executed  in  the  year  1803,   between  the  defendant,  who  was  a 
tailor  in  low  circumstances,  of  the  first  part,  his  wife  of  the  second  part,  and 
the  plaintiff,  who  was  sister  to  the  defendant's  wife,  of  the  third  part,  by  which 
the  defendant  covenanted  with  the  plaintiff,  and  agreed  with  his  wife  that  he 
would  permit  his  wife  to  live  apart  from  him,  as  a  single  woman,  and  would 
suffer  her  to  enjoy  all  the   effects  then  in  her  possession,  or  which  she  might 
thereafter  acquire,  notwithstanding  her  coverture  ;  and  assigned  the  same  to  the 
plaintiff,  as  her  trustee,  and  made  the  plaintiff  his  attorney  to  sue  for  the  same 
in  trust  for  his  wife  ;  and  further  covenanted  with  the  plaintiff,  that  he  would 
pay  unto  his  wife,  or  to  such  person  as  she  should  appoint,  for  and  towards  her 
maintenance,  an  annuity  of  13^.  at  the  rate  of  5s.  per  week,  during  her  life, 
for  all  such  time  as  she  should  live  separate  and  apart   from   him,   which  she 
agreed  to  accept,  in  full  satisfaction,  for  her  support,  maintenance,  and  alimony  : 
provided,  that  if  the  defendant  should  pay  any  debt  which  his  wife,  during  such 
separation  and  payment  of  the  annuity,  should  contract,  it  should  be  lawful  for 
him  to  withhold  payment  of  the  said  weekly  sum  of  5s.  until  he  should  be  re- 
imbursed :  that  the  defendant's  wife  upon  this  separation  taking  place,  went  to 
live  with  the  plaintiff,  her  sister,  and  was  furnished  by  her  with  the  necessaries 
for  which  this   action   was   brought ;  and  that   the  defendant,  having  for  some 
time  failed  in  payment  of  the  weekly    allowance   stipulated  by  the  deed,  this 
action  was  commenced  to  recover  from  him  the  amount  of  what  had  been  fur- 
nished to  his  wife.     In  the  course  of  the   trial  the  deed  of  separation  having 
been  produced,  the  learned  judge  declared  his  opinion,  that  the  plaintiff  could 
not  maintain   the  present   action,   framed  as  it  was,  and  accordingly  nonsuited 
the  plaintiff.     But  a  rule  nisi  was  obtained  for  setting  aside  this  nonsuit ;  and 
after  argument  the  Court  made  the  rule  absolute,  though  the  Chief  Justice  differ- 
ed in  opinion  with  the  rest  of  the  Court. 

In  the  recent  case  of  Jce  v.  Thurlow,(x)  where  an  action  was  brought  upon 
a  deed  of  separation  of  three  parts,  between  husband  and  wife,  and  trustee ; 
reciting,  that  differences  existed,  and  that  the  husband  and  wife  had  agreed  to 
live  separate,  the  husband  covenanted  to  pay  an  annuity  *to  the  wife,  during  so 
much  of  her  life  as  he  should  live ;  and  the  trustee  covenanted  to  indemnify 


(to)  2  New  Rep.  C.  B.  148. 
*611   *612 


(x)  2  Barn.  &.  Cress,  647. 


Chap.  6.]     By  the  Wife  before  or  after  Marriage.        612 

the  husband  against  the  wife's  debts,  and  that  she  should   release    all  claim  of 
jointure,  dower,  and  thirds :  the  Court  determined,  that  this  deed  was  legal  and 
binding,  and  that  a  plea  by  the  husband,  that  the  wife  sued  in  the  ecclesiastical 
court  for  restitution  of  conjugal  rights,  and  that  he  put  in  an  allegation  and  ex- 
hibits, charging  her  with  adultery,  and  that  a  decree  of  divorce  a  mcnsa  et  thoro 
was  in  that  cause  pronounced,  was  not  a  sufficient   answer  to  an  action  by  the 
trustee  for  arrears  of  the  annuity.     And  in  this  case  Abbott  Ch.  J.  said,  "  For 
a  long  series  of  years,  all  the  judges  when  called  upon  to  pronounce  judgment 
in  such  cases,  have  felt  themselves  bound  by  former  decisions,  although  each 
of  them  in  his  turn  has  said,  that  this  opinion  would  probably  have  been  differ- 
ent, had  the  question  been  res  Integra.     In    St.  John  v.    St.   John,  the  Lord 
Chancellor  says,  '  If  this  were  res  Integra  untouched  by   dictum  or  decision,  I 
would  not  have  permitted  such  a  covenant  to  be  the  foundation  of  an  action  or 
a  suit  in  this  court.     But  if  dicta  have  followed  dicta,  or  decision  has  followed 
decision,  to  the  extent  of  settling   the  law,  I  cannot  upon  any  doubt  of  mine, 
as  to  what  ought  originally  to  have  been  the  decision,  shake  what  is  the  settled 
law  upon  the  subject.'     That  opinion  is  a  fit  guide  for  us  :  ought  not  we  to  say, 
that  if  a  new  decision  is  to  overturn  all  the   former  cases   on   this   question,  it 
must  be  the  decision  of  that  high  tribunal,  which  is  competent  to  give  the  law 
to  all  other  tribunals,  and  rectify  their  errors  whenever  called  upon  to  review 
them.     For  these   reasons  I  cannot,  sitting  in  this  place,  say  that  the  deed  is 
void.     The   only   question,  then,  is  upon   the  sufficiency  of  the  plea.     It  has 
been  decided,   that   a  plea  stating   the  commission  of   adultery  by  the  wife 
is  not  sufficient,  upon  this  ground,  that  if  the  husband,  when  executing  such  a 
deed  as  this,  thinks  proper  to  enter  into  an  unqualified  covenant,  he  must  be 
bound  by  it.     Had  he  wished  to  make  the  non-commission  of  adultery  a  condi- 
tion of  paying  the   annuity  to  his  wife,  he  should  have  covenanted   to  pay  it 
quaindiu  casta  vixerit.     A  plea  of  judgment  in  the   ecclesiastical  court,  but  not 
alleging  the  fact  of  adultery,  is  not  at  all  more  favourable  for  the  defendant ; 
our  judgment  must  therefore  be  for  the  plaintiff." 

But  a  deed  made  between  husband  and  wife  and  a  third  person  (a  trustee,) 
with  a  covenant  by  the  husband  to  pay  such  third  person  an  annuity,  in  case  the 
wife  should  live  separate  and  apart  from  her  husband,  and  should  take  one  of 
her  children  to  reside  with  her,  is  void  as  being  a  deed  made  in  contemplation 
of  a  future  separation  at  the  pleasure  of  the  wife  ;  and,  therefore,  contrary  to 
the  policy  of  marriage,  (y) 

Where  husband  and  wife  lived  separate  for  many  years,  she  supporting  her- 
self out  of  her  own  property,  and  the  husband  not  having  been  *called  upon, 
during  that  period,  for  a  supply  of  necessaries,  is  not  liable  to  be  sued  by  any 
person  who  may  have  given  her  credit  even  for  necessaries,  (z) 

So,  where  the  wife  elopes  from  her  husband,  and  lives  in  a  state  of  adultery, 
he  is  not  liable  for  necessaries,  though  she  be  even  desirous  of  returning,  and 


(y)   Durant  v.  Titley,  7  Price  Rep.  577.  (z)  Lidlow  v.  Wilmcl,  2  Stork.  Rep.  86. 

•613 


613  Of  Husband  and  Wife  ;  and  of  Gontr acts  made  [Part  III. 

offers  to  live  with  her  husband.  This  was  settled  in  the  case  of  Morris  v. 
Martin,(a)  which  was  an  action  for  necessaries  provided  for  the  defendant's 
wife.  The  defendant  proved  that  she  went  away  from  him  with  an  adulterer  : 
and  it  was  held,  that  the  husband  should  not  be  charged  for  necessaries  provid- 
ed for  her,  though  the  plaintiff  had  no  notice.  And  the  Chief  justice  Raymond, 
in  a  similar  case  of  Child  and  others  v.  Hardyman,(b)  said,  "  If  a  woman 
elopes  from  her  husband,  though  she  does  not  go  away  with  an  adulterer,  or 
in  an  adulterous  manner,  the  tradesman  trusts  her  at  his  peril,  and  the  husband 
is  not  bound.  And  this  had  been  so  adjudged  in  two  or  three  cases.  Indeed  if 
he  refuse  to  receive  her  again,  from  that  time  it  may  be  an  answer  to  the  elope- 
ment. In  this  case  he  does  not  absolutely  refuse  to  receive  her  again  :  but  that 
she  should  neither  sit  at  his  table,  nor  have  any  government  of  the  children,  but 
should  be  kept  in  a  garret ;  and  she  deserved  no  better  usage." 

So,  in  the  case  of  Covier  v.  Hannock,{c)  which  was  an  action  of  assumpsit 
brought  by  the  plaintiff  for  the  board  and  lodging  of  the  defendant's  wife.  The 
defendant,  having  committed  adultery  with  a  woman  of  the  name  of  Bazely, 
whom  he  had  brought  home,  treated  his  wife  with  great  cruelty,  and  finally 
turned  her  out  of  doors.  Then  the  wife  committed  adultery,  after  which  she 
offered  to  return  home,  but  her  husband  would  not  receive  her  ;  and  this  action 
was  brought  for  her  board  and  lodging  subsequent  to  that  time.  Butter  Just., 
before  whom  the  cause  was  tried,  was  of  opinion  that  the  husband  was  not 
bound  to  receive  the  wife  after  she  had  committed  adultery,  and,  consequently, 
was  not  bound  to  support  her  ;  and  he  directed  a  verdict  for  the  defendant, 
with  liberty  for  the  plaintiff  to  move  to  enter  a  verdict  for  him,  if  the  Court  of 
King's  Bench  should  be  of  opinion  that  the  defendant  was  liable  under  these 
circumstances.  Accordingly  the  plaintiff  moved  to  set  aside  the  verdict,  on  the 
ground  that  as  the  defendant  had  been  the  aggressor,  and  had  turned  his  wife 
out  of  doors  at  a  time  when  there  was  no  imputation  on  her  conduct,  he  was 
bound  to  provide  for  her,  notwithstanding  she  afterwards  committed  adultery  ; 
that  in  this  respect  it  differed  from  the  case  of  the  wife  being  the  aggressor,  and 
eloping  with  an  adulterer,  in  which  case  the  husband  was  discharged  ;  that  it 
*had  never  yet  been  determined  that  under  these  circumstances  the  husband 
was  not  liable,  and  that  upon  principle  he  was  liable. 

But  the  Court  said,  "  That  though  this  precise  case  did  not  appear  to  have 
been  controverted  before,  it  was  probably  because  the  point  had  not  been  doubt- 
ed ;  and  that  it  must  be  governed  by  the  same  principle  on  which  it  had  been 
determined,  that  the  husband  is  not  liable  in  cases  where  the  wife  goes  away 
with  an  adulterer.  That  this  was  not  a  modern  rule,  but  was  mentioned  by 
Lord  Coke,  that  if  a  wife  go  away  with  an  adulterer  she  loses  her  dower.  That 
the  question  depended  upon  this,  whether  the  necessaries  were  provided  be- 
fore or  after  the  wife  had  committed  adultery :  if  after,  the  action  could  not  be 
maintained.     And  that  in  this  case  if  the  wife  had  instituted  a  suit  in  the  Ec- 


(«)  1  Stra.  647.     See  also  2  Stra.  706.  12         (6)  2  Stra.  874,  5. 
Mod.  372.  S.  P.  (c)  6  Term.  Rep.  603. 

*614 


Chap.  6.]      By  the  Wife  before  or  after  Marriage.         614 

clesiastical  Court  again3t  the  husband  for  restitution  of  conjugal  rights,  they 
would  not  have  assisted  her."     The  rule  was  accordingly  discharged. 

But,  in  the  case  of  Norton  v.  Fazan,(d)  which  was  an  action  of  assumpsit 
for  necessaries  found  for  the  defendant's  wife  and  children.  The  facts  were  these : 
some  time  previous  to  the  delivery  of  the  goods,  the  defendant  having  discov- 
ered that  his  wife  kept  up  an  adulterous  intercourse  with  another  man,  sepa- 
rated himself  from  her,  leaving  her  in  possession  of  the  house  which  he  had 
inhabited,  together  with  two  children  bearing  his  name.  In  this  house  she  was 
living  in  a  state  of  adultery  at  the  period  when  the  goods  in  question  were  de- 
livered. The  defendant  had  made  no  regular  provision  for  his  wife.  The 
cause  was  tried  before  Eyre  Ch.  J.,  who  was  of  opinion  that  if  the  plaintiff 
knew  or  ought  to  have  known  that  the  separation  proceeded  from  the  adultery 
of  the  wife,  the  jury  should  find  for  the  defendant ;  if  not,  that  the  plaintiff 
was  entitled  to  recover.  The  jury  found  a  verdict  for  the  plaintiff.  And  upon 
a  motion  for  a  new  trial,  the  Court  were  of  opinion  that  the  plaintiff  was 
entitled  to  recover.  And  Eyre  Ch.  J.  said  :  "  If  the  defendant  in  another  ac- 
tion brought  against  him  by  some  other  tradesman,  shall  be  able  to  establish 
the  notoriety  of  his  wife's  situation,  he  may  defend  himself.  But  as  the  case 
stands  at  present,  this  woman  appears  to  have  been  living  in  a  house  in  which 
she  was  placed  by  the  defendant  himself,  together  with  two  children  bearing 
the  husband's  name,  both  of  whom  were  born  in  wedlock.  It  is  true,  that  she 
had  an  adulterous  intercourse  with  another  man,  but  that  was  not  proved  to  be 
known  to  this  tradesman.  If  the  defendant  can  bring  it  home  to  any  other 
tradesman  who  shall  be  in  the  same  situation  as  the  present  plaintiff,  that  he 
did  know  or  ought  to  have  known  the  circumstances  under  which  the  wife  was 
living,  the  defendant  may,  perhaps,  be  able  to  prevent  another  verdict  passing 
against  him." 

*Buller  Just,  said,  "  Every  case  on  the  facts  is  peculiar  to  itself,  and  this  is 
so  different  from  every  other  case  which  has  been  decided  in  Westminster  Hall, 
that  I  consider  it  as  anomalous.  The  verdict  is  clearly  and  strictly  right.  The 
wife  committed  adultery  for  a  considerable  time  while  she  was  living  with  her 
husband  ;  he'  voluntarily  yielded  his  bed  to  the  adulterer  and  made  no  provi- 
sion for  her.  Then  what  colour  of  defence  is  left  ?  Knowing  of  her  criminal 
conduct,  and  having  made  no  provision  for  her,  he  must  maintain  her  as 
before.'' 

It  is  observed,  (e)  that  where  the  husband  and  wife  are  separated  a  mensa  el 
thoro  by  sentence  in  the  Ecclesiastical  Court  the  law  allows  her  alimony  at  the 
discretion  of  the  judge,  unless  she  has  eloped  and  lives  with  an  adulterer  ;  and 
as  the  common  law  gives  her  a  writ  to  recover  this,  it  would  seem  that  the  hus- 
band is  excused  from  the  obligation  of  her  contracts.  So,  where  she  is  sentenc- 
ed to  a  temporary  confinement  as  a  punishment  for  some  crime,  the  husband 
has  been  held  not  liable  to  her  agreement,  even  for  necessaries,   if  she  is  kept 


(</)  1  Bos.  &  Pul.  226.  (e.)  2  Stra.  1214.  n.    I.   1     Bl.  Com.  411. 

Ellah  v.  Leigh,  5  Term  Rep.  679. 
75  *C15 


615  Of  Husband  and  Wife  ;  and  of  Contracts  made  [Part  III. 

in  an  improper  place  by  the  covin  of  the  gaoler.  (/)  But  in  the  case  of  Man- 
by  v.  Scott,{g)  the  judges  who  argued  for  the  plaintiff  laid  it  down  as  clear 
law,  that  if  a  wife  be  prisoner  for  felony,  and  the  gaoler  provides  her  with  food, 
that  the  husband  may  be  charged  for  it. 

5.  OF  CONTRACTS  MADE  BY    A  WOMAN  LIVING  WITH  A  MAN  AS  HIS 

WIFE. 

If  a  man  and  woman  live  together,  and  pass  in  the  world  as  husband  and 
wife,  the  man  shall  be  liable  to  all  contracts  entered  into  by  the  woman  in  the 
same  manner  as  he  would  have  been  liable  if  they  had  been  actually  marri- 
ed, (h) 

So,   in  the  case  of  Watson  v.  Threlkeld ,(i)  which  was   action  of  assumpsit 
brought  to  recover  the  amount  of  a  quantity  of  linen  drapery  goods,  furnished 
by  the  plaintiff  to  a  woman  who  passed  for  the  wife  of  the  defendant.     The 
plaintiff  proved  the  delivery  to  the  woman  at  the  defendant's  lodgings  ;  that  he 
had  himself  chosen  some  of  the    articles  for  her  ;    that  she  used  his  name, 
and  was  called  Mrs.    Threlkeld  in  his  presenee.      The  defence  relied  on  was, 
that  this  woman  was  not  his  wife,  though  she  lived  with  him  as  such,  but  was 
a  kept  woman,  and  that  that  circumstance  was  known  to  the  plaintiff  when  the 
goods  were  furnished.      It    was  then  pressed  by  the  defendant's  counsel,  that 
however  it  had  been  held,   that  if  a  man  permitted  a  woman  to  use  his  name 
and  pass  for  his  wife,  he  thereby  subjected  himself  to  the  payment  of  her  debts  ; 
it  had  *only  gone  to  those  cases  where  the  tradesman  had  not  known  the  real 
situation  of  the  paities,  but  believed  the  woman  to  be  actually  married  ;  that  it 
was  meant  as  a  punishment  on  the  man,  who,  by  permitting  a  woman  to  use 
his  name,  had  thereby  given  her  a  false  credit,  derived  from  his  situation  in  life, 
as  passing  for  his  wife  ;  but  in  the  present  case  no  such  deceit   was  practised, 
no  such  false  colours  held  out ;  the  plaintiff  knew   that  the  defendant  was  not 
married,  so  that  he  could  not  look  to  his  credit,  but  to  the  woman's  own,  and 
that  the  plaintiff  should  therefore  be  nonsuited. 

Lord  Kenyon  Ch.  J.  "  It  is  certain  that  if  a  man  has  permitted  a  woman,  to 
whom  he  was  not  married,  to  use  his  name,  and  pass  for  his  wife,  and  in  that 
character  to  contract  debts,  he  is  liable  for  her  debts  ;  and  I  am  of  opinion  that 
he  is  liable,  whether  the  tradesman  who  furnished  the  goods  knew  the  circum- 
stances to  be  so  or  not.  He  gives  her  a  credit  from  his  name  and  cohabitation, 
and  it  is  not  to  be  supposed  that  the  tradesman  could  look  to  the  credit  of  a 
woman  of  that  description,  and  not  to  that  of  the  man  by  whom  she  was  sup- 
ported :  I  shall  hold  the  credit  to  be  given  to  him,  and  that  he  is  liable."  His  lord- 
ship added,  "  What,  however,  I  have  said  must  not  be  taken  to  be  the  case 
of  a  common  strumpet,  who  may  assume  the  name  of  a  person,  without  his 
authority,  from  having  casually  known  him  ;  it  must  be  where  the  man  per- 


(/)  Vido  Fowleav.  Dinely,  2  Stra.  1122.     Feme,  D.  b.  pi,  33.     Cowp.  233. 
(g)  1  Sid.  113.  But  see  2  Lev.  16.  (t)   2  Esp.  Rep.  637. 

(ft)  12  Mod.  372.  Vin.  Abr.  tit.  Baron  & 
*616 


Chap.  6.]     By  the  Wife  before  or  after  Marriage.     616 

mits  the  woman  to  assume  his  name,  where  she  lives  in  his  house,  and  is  part 
of  his  family." 

So,  where  a  woman  marries  a  second  husband  before  the  death  of  the  first 
(she  believing  the  first  to  have  been  dead,)  and  the  second  being  wholly  igno- 
rant of  the  fact :  it  was  held  by  Parker  Ch.  J.  (k)   "  That  for  what  she  ac- 
quired during  the  cohabitation,  he  would  esteem  her  as  a  servant  to  the  second 
husband,  and  that  he  was  entitled  to  the  benefit  of  her  labour." 

6.  HOW  HUSBAND  AND  WIFE  MUST  SUE  AND  BE  SUED  JOINTLY. 

Upon  all  contracts  made  with  the  wife  before  marriage,  the  husband  and 
wife  must  sue  and  be  sued  jointly.  (I)  (224)  So,  in  the  case  of  rent,  where 
part  accrues  before  and  the  remainder  after  the  marriage,  both  must  be  join- 
ed, (m) 

So,  they  ought  to  sue  jointly  in  actions  upon  promises,  which  arise  during 
coverture,  where  the  wife  may  have  an  action  for  the  same  cause,  if  she  survives 
her  husband.  (225)  Thus,  if  a  feme  covert  has  a  mill,  and  one  agrees  with  the 
husband  and  wife  to  grind  all  his  corn  at  the  mill,  under  *a  penalty  in  default 
thereof,  they  ought  to  join  ;  for  the  action  would  survive  to  her.(n)  So,  if  a  man 
promises  to  give  a  100/.  to  the  wife  of  J.  S.  they  ought  to  join  in  an  action  for  the 
recovery  thereof,  (o)  But  the  husband  may  sue  alone  upon  a  bill  of  exchange 
given  to  the  wife  before  marriage,  but  which  became  due  afterwards,  (p)  So,  in 
an  action  for  any  thing  due  to  the  wife  en  auter  droit,  they  ought  to  join  :  as  if 
they  sue  for  a  debt,  &c.  to  the  wife  as  executrix  or  administratrix,  (j)  But,  on  a 
promise  to  pay  a  husband  money  due  to  his  wife  as  executrix  in  consideration 
of  his  forbearing  to  sue  for  it,  the  husband  alone  ought  to  sue.  (r) 

When  the  wife  is  the  meritorious  cause  of  action,  it  has  been  ruled, (s)  that 
the  husband  alone  may  sue,  or  the  husband  and  wife  may  join,  though  damag- 
es only  are  recovered :  as  in  assumpsit  upon  an  express  promise  to  the  wife, 
after  coverture,  to  pay  her  101.  in  consideration  of  a  cure  to  be  performed  by 
her  ;  the  husband  and  wife  may  join,  or  the  husband  alone  may  sue.     So,  up- 


(k)  1  Stra.  80.  218. 

(/)  2  Com.  Dig.  tit.  Baron  &  Feme,  V.  Y.  (q)  Com.  Dig.  tit.  Baron  and  Feme,  V.  1 

JSIetchinsoti  v.  Hew  son,  7    Term  Rep.  343.  Salk.  232. 

(m)  Richardson  v.  Hall,  3  Mo.  Rep.  307.  (r)  Yard  v.  Eland,  1  Ld.  Raym.  363.  1  Salk. 

(n)   Demstan  and  wife  v.  Bunnell,  1  Wils.  117.  Carth  462.  S.  C. 

224.  See  also  2  Wils.  214.  (s)  Cro.  Jac.  77.  205.  1  Sid.  25.  2  Sid.  128. 

(o)  Per  Curiam,  Bulst.  21.  1  Salk.   114.  Com.  Dig.  tit.  Baron  &  Feme, 

(p)  M'Neilage  v.  Hollowatj,  1  Barn.  &.  Aid.  X. 


(224)  See  Angel  v.  Fellon,  8  J.  R.  115.  2d.  edit. 

(225)  If  husband  and  wife  join  in  an  action,  the  interest  of  the  wife  must  be  made  to 
appear  from  the  pleadings.  Staley  v.  Barkite,  2  Caines,  221.  And  in  all  cases  where 
the  cause  of  action  will  survive  to  the  wife  on  the  death  of  the  husband  she  must  be 
joined :  And  the  husband  must  also  join,  if  he  have  an  interest  in  the  subject.  Byrne  v. 
Van  Hoesen,  5  J.  R.  66.  Schoonmaker'ls  Ex.  v.  Elmendorf,  10  J.  R.  49.  Johnson  v.  Parmely, 
17  J.  R.  271.  Donaldson  v.  Maginnes,  4  Yates,  127.  Sheble  v.  Cummins,  2  Browne,  253- 
Seart  V.  Hyer,  1  Paige,  483.     Crozier  v.  Bryant,  4  Bibb,  174.     Babb  v.  Perley,  1  Greenl.  6. 

*617 


617  Of Husband  and  Wife;  and  of  Contracts,  fyc    [Part  III. 

on  a  promise  to  pay  81.  per  annum  to  the  husband  and  wife  during  coverture, 
they  may  join  ;  or  the  husband  alone  may  sue.(i)  But  when  the  wife  cannot 
have  an  action  for  the  same  cause,  if  she  survive  her  husband,  the  general  rule 
of  law  is,  that  the  action  must  be  by  the  husband  alone.  («)( 226)  As,  in  an  in- 
debitatus assumpsit  on  an  implied  promise  to  pay  for  work  done  by  the  wife 
during  coverture  ;  the  law  presumes  no  promise  to  have  been  made  to  the  wife  ; 
for  she  is  the  servant  of  her  husband  ;  and  he  is  not  only  at  the  charge  of  the 
materials  to  carry  on  the  work,  but  is  also  obliged  to  maintain  his  wife  ; 
and  therefore  it  is,  the  law  considers  the  promise  to  have  been  made  to  him  on- 
ly.(v) 

(t)  Com.  Dig.  tit.  Baron  &  Feme,  X.  (v)  4  Mod.  156.1  Salk.   114.  3  Salk.  63. 

(u)  Com.  Dig.  Tit.  Baron  &  Feme,   W.    Carth.  251.  8  Mod.  199,200.  1  H.  Bl.  108. 


(226)  See  Robards  v.  Hutson,  3  M'Cord,  475.  Edivards  v,  Davis,  16  J.  R.  281.  Jackson 
v.  Vanderheyden,  17  J.  R.  167.  Where  husband  and  wife  execute  a  conveyance,  wherein 
both  covenant  to  the  grantee,  the  wife  cannot  be  joined  with  her  husband  in  an  action  for  a 
breach  of  the  covenant,  her  acknowledgment  having  no  further  effect  than  merely  to  convey 
her  interest  ir  the  land,  and  not  binding  her  by  the  covenants  contained  in  the  deed.  Whit- 
beck  v.  Cook,  15  J.  R.  433. 


Chap.  7.]  Of  Contracts  with  Infants.  618 


•CHAPTER  VII. 


OF    CONTRACTS    WITH    INFANTS:    AND    OF    THE    LIABILITY"    OF  PA- 
RENT OR  CHILD  FOR  NECESSARIES. 


1.  Of  Contracts  with  Infants.] — By  the  common  law  a  person  is  called 
an  infant  till  the  age  of  2 1  years,  (a)  And  all  contracts  with  infants,  except  for 
necessaries,  are  either  void  or  voidable  ;(b)  the  reason  of  which  is,  the  indul- 
gence the  law  has  thought  fit  to  give  infants,  who  are  supposed  to  want  judg- 
ment and  discretion  in  their  contracts  and  transactions  with  others,  and  the  care 
it  takes  of  them  in  preventing  them  from  being  imposed  upon  or  overreached 
by  persons  of  more  years  and  experience,  (c)  Therefore  if  an  infant  be  in  trade, 
and  contract  a  debt  in  buying  goods,  &c.  for  his  trade,  it  is  not  recoverable 
against  him,  though  he  thereby  gains  his  living.  (227)  Thus  in  the  case  of 
Whittingham  v.  Hill,(d)  which  was  an  action  of  assumpsit  for  goods  sold; 
the  defendant  pleaded  that  he  was  an  infant :  the  plaintiff  replied  that  the  goods 
were  for  the  necessary  diet  and  apparel  of  the  defendant  and  his  family  ;  the  de- 
fendant rejoined  that  he  kept  a  mercer's  shop  at  Shrewsbury,  and  bought  the 
goods  to  sell  again,  and  traversed  that  he  bought  them  pro  necessario,  &c. :  the 
plaintiff  thereupon  demurred.  And  after  argument,  it  was  adjudged  for  the 
plaintiff.  But  afterwards  upon  a  writ  of  error,  the  judgment  was  reversed. 
And  the  Court  said  :  "  This  buying  for  the  maintenance  of  the  defendant's  trade, 
though  he  gamed  thereby  his  living,  shall  not  bind  him,  for  an  infant  shall  not 
be  bound  by  his  bargain  for  any  thing  but  for  his  necessity,  viz.  diet  and  ap- 
parel, or  necessary  learning." 

And  the  rule  of  law  is  said(c)  to  be  the  same  in  regard  to  a  debt  incurred  in 
repairing  houses  belonging  to  an  infant. 

(a)  Co.  Lit.  171.  b.  also  1  Rol.  Abr.  729. 1.  15.  Dy.   104.  b.n.  13. 

(b)  Com.  Dig.  tit.  Enfant,  B.  5.  C.  2.  2  Stra.  1083.     2  Esp.  Rep.  4S0.  S.  P. 

(c)  Bac.  Abr.  tit.  Infancy  and  Age  I.  3.  (e)  3  Salk.  196.     Sed   quare.  vide  3  Bur. 

(d)  Cro.  Jac.  494.     2  Rol.  Rep.  45.    See  1717.  2  Bulstr.  69. 


(227)  See  Van  Winkle  v.  Kelcham,  3  Caines,  323. 

*618 


619  Of  Contracts  with  Infants.  [Part  III. 

*So,  a  bill  of  exchange  or  other  written  contract  made  by  an  infant,  is  void- 
able by  the  infant.  Thus,  in  the  case  of  Williams  v.  W.  Harrison  and  R. 
Harrison,(f)  which  was  an  action  brought  upon  a  bill  of  exchange  drawn  by 
the  defendants,  and  protested  for  non-payment.  R.  Harrison,  one  of  the  de- 
fendants, pleaded  infancy  in  bar  ;  to  which  the  plaintiff  demurred,  upon  the 
ground  that  infancy  was  no  bar  to  this  action,  it  being  founded  on  the  custom 
of  merchants.  But  the  court  without  argument,  over-ruled  the  demurrer,  for 
they  clearly  held,  "  That  infancy  was  a  good  bar  notwithstanding  the  custom ; 
for  here  the  infant  is  a  trader,  and  the  bill  of  exchange  was  drawn  in  the  course 
of  trade,  and  not  for  any  necessaries  ;  so  judgment  was  entered,  that  the  plain- 
tiff Nil  capiat  per  Billam  versus  R.  Harrison.  And  Holt,  Ch.  J.  cited  a  case, 
"  That  where  an  infant  keeps  a  common  inn,  yet  an  action  on  the  case  upon 
the  custom  of  inns  will  not  lie  against  him,  which  is  stronger  than  the  principal 


case." 


But  although  a  bill  be  drawn,  indorsed,  or  accepted,  by  a  person  under  age, 
it  will  nevertheless  be  valid  against  all  other  persons  who  are  competent  par- 
ties to  the  instrument,  (g)  So,  a  bill  drawn  upon  an  infant,  but  accepted  after 
he  came  of  age,  is  valid  against  the  acceptor  himself,  (h) 

If  an  infant  submit  a  matter  to  arbitration,  and  an  award  is  made  against 
him,  he  may  perform  the  award,  or  avoid  it  at  his  election,  as  he  may  all  other 
his  contracts.  (i)(228) 

A  contract  made  with  an  infant  cannot  be  converted  into  a  tort  so  as  to 
make  him  liable  in  that  form  of  action.  Thus,  if  one  deliver  goods  to  an  in- 
fant upon  a  contract,  &c.  knowing  him  to  be  an  infant,  he  shall  not  be  charge- 
able in  trover  and  conversion,  or  any  other  action  for  them  ;  the  infant  being 
incapable  of  making  any  contract  but  for  necessaries ;  therefore,  such  delive- 
ry is  a  gift  to  the  infant :  but  if  an  infant  without  any  contract  wilfully  takes 
away  the  goods  of  another,  trover  lies  against  him  :  it  is  also  said,  that  if  he 
takes  the  goods  under  pretence  that  he  is  of  full  age,  trover  lies,  because  it  is  a 
wilful  and  fraudulent  trespass. (A;)  So,  in  Jennings  v.  Rundall,(l)  which  was  a 
special  action  on  the  case  in  tart ;  and  the  plaintiff  declared  that  at  the  defen- 
dant's request  he  had  delivered  a  mare  to  the  defendant  to  be  moderately  rid- 
den, but  that  the  defendant  maliciously  intending,  &c.  wrongfully  and  injuri- 
ously rode  the  mare  so  that  she  was  damaged,  &C.  It  was  holden,  that  the 
defendant  might  plead  his  infancy  in  bar,  the  action  being  founded  on  a  con- 
tract. And  Lord  Kent/on  Ch.  J.  said  :  "  The  law  of  England  has  very 
•wisely  protected  infants  against  their  liability   in  cases   of  contract ;  and  the 


(/)  Carth.  160.     Holt.  359.  S.  C.  (fc)  See  1   Sid.   129.     1   Lev.  169.     Keb. 

(g)  Taylor  v.  Croker,  4  Esp.  Rep.  187.  See  905.  913. 

also  2  Atk.  181,  2.  (Z)  8  Term  Rep.  335.   See  Green  v.  Green- 

(h)  Stevens  v.  Jackson,  4  Campb.  164.  bank,  2  Mar.  Rep.  485. 
(i)  Bac.  Abr.  tit.  Infancy  and  Age,  1. 3. 

(223)  See  Hanks  v.  Deal,  3  M'Cord,  257.    Briiton  v.  Williams''  Dev.  6  Munf.  453.     Gal- 
I'sway's  Heirs  v.  Webb,  Hardin,  318,  329. 

♦619  *620 


Chap.  7.]  Of  Contracts  with  Infants.  620 

present  case  is  a  strong  instance  to  show  the  wisdom  of  that  law.  The  defen- 
dant, a  lad,  wished  to  ride  the  plaintiffs  mare  a  short  journey ;  the  plaintiff  let 
him  the  mare  to  hire  ;  and  in  the  course  of  the  journey  an  accident  happened,  the 
mare  being  strained  ;  and  the  question  is,  whether  this  action  can  be  maintained? 
I  am  clearly  of  opinion  that  it  cannot ;  it  is  founded  on  a  contract.  If  it  were 
in  the  power  of  a  plaintiff  to  convert  that,  which  arises  out  of  a  contract,  into  a 
tort,  there  would  be  an  end  of  that  protection  which  the  law  affords  to  infants. 
Lord  Mansfield,  indeed,  frequently  said  that  this  protection  was  to  be  used  as 
a  shield,  and  not  as  a  sword  ;  therefore  if  an  infant  commit  an  assault,  or 
utter  slander,  God  forbid  that  he  should  not  be  answerable  for  it  in  a  court  of 
justice.  But  where  an  infant  has  made  an  improvident  contract  with  a  person 
who  has  been  wicked  enough  to  contract  with  him,  such  person  cannot  resort 
to  a  court  of  law  to  enforce  such  contract.  And  the  words  '  wrongfully,  inju- 
riously, and  maliciously,'  introduced  into  this  declaration,  cannot  vary  this 
case." 

But  an  action  of  assumpsit  will  lie  against  an  infant  to  recover  money  em- 
bezzled by  him.  Thus,  in  the  case  of  Bristow  and  others,  assignees,  &c.  v. 
JEastman,(m)  which  was  an  action  of  assumpsit  for  money  had  and  received 
to  the  use  of  the  bankrupts  before  they  became  bankrupts.  The  defendant 
had  been  apprentice  to  the  bankrupts,  who  were  merchants,  and,  during  his 
apprenticeship,  had  been  entrusted  by  them  to  make  entries  at  the  custom- 
house, and  pay  other  sums  of  money  on  their  account.  He  had  frequently 
charged  larger  sums  of  money  than  those  he  actually  paid,  and  the  present 
action  was  brought  to  recover  back  the  over-charges.  The  defendant  attempt- 
ed to  defend  himself,  on  account  of  his  being  an  infant  at  the  time.  But  Lord 
Kenyon  Ch.  J.  said,  "  The  question  was  new,  and  had  not  been  decided  ; 
but  he  was  of  opinion  that  this  action,  though  in  form  arising  ex  contractu,  in 
fact  arose  ex  delicto,  and  as  he  could  not  have  defended  himself  by  reason  of 
his  infancy  if  an  action  of  trover  had  been  brought  for  the  money,  so  he  ought 
not  to  be  permitted  to  defend  himself  on  that  ground,  in  this  action."  The 
plaintiffs,  however,  proved  that  the  defendant  acknowledged  the  fraud,  and  pro- 
mised payment  after  he  came  of  age,  so  that  the  point  was  not  determined  ;  the 
plaintiffs  obtaining  a  verdict  on  this  evidence. (229) 

(ro)  Peake'sCas.  N.  P.  223.     1  Esp.  Rep.  172.  S.  C. 

(229)  Where  an  infant  took  a  mare  on  hire,  and  drove  her  with  such  violence,  and  other- 
wise cruelly  treated  her,  so  that  she  died  j  it  was  held,  that  though  case  would  not  lie,  tres- 
pass might  be  maintained  against  him  for  the  injury.  Campbell  v.  Stakes,  2  Wend.  137. 
But,  it  seems,  that  in  such  case,  the  plea  of  infancy,  with  an  averment,  that  the  injury 
complained  of,  happened  through  the  unskilfulness,  want  of  knowledge,  discretion  and 
judgment  of  the  defendant,  would  be  a  good  bar  to  the  action.  Id.  Though  infants  are 
liable  for  torts,  yet,  it  will  by  no  means  follow,  that  their  promises  to  make  compensation  for 
torts,  are  binding  upon  them:  Thus,  where  an  award  of  arbitrators  was  against  an  infant 
for  a  tort  by  him  committed ;  and  he  gave  his  promissory  note  for  the  damages  awarded, 
the  note  was  held  to  be  void.     Hanks  v.  Deal,  3  M'Cord,  257. 

Infancy  is  a  good  bar  to  an  action  ex  contractu,  by  the  owner  of  a  cargo  against  his  agent, 
the  supercargo,  for  a  breach  of  orders ;  but  it  is  no  defence  in  trover  for  the  conversion  of 
goods.     Vasse  v.  Smith,  6  Cranch,  226.     And  an   infant  is  liable  in  trover,   although  tho 


620  Of  Contracts  with  Infants-  [Part  III. 

An  infant  is  liable  in  detinue  for  goods  delivered  to  him  for  safe  custody,  &c. 
and  which  he  refuses  to  return.  (?i) 

As  to  the  acts  of  infants  being  void  or  voidable,  it  is  said,  (o)  there  is  a  diver- 
sity between  an  actual  delivery  of  the  thing  contracted  for,  and  *a  bare  agree- 
ment to  deliver  it  only,  that  the  first  is  voidable,  but  the  last  absolutely  void  ; 
as  if  an  infant  deliver  a  horse  or  a  sum  of  money  with  his  own  hands,  this  is 
only  voidable,  and  to  be  recovered  back  in  an  action  of  account.  But  if  an  in- 
fant agrees  to  give  a  horse,  and  does  not  deliver  the  horse  with  his  hand,  and 
the  donee  takes  the  horse  by  force  of  the  gift,  the  infant  shall  have  an  action 
of  trespass,  for  the  grant  was  merely  void.  (230) 

It  is  also  laid  down  as  a  general  rule,(p)  that  infancy  is  a  personal  privi- 
lege, of  which  no  one  can  take  advantage  but  the  infant  himself  ;(231)  and 
therefore,  though  the  contract  of  the  infant  be  voidable,  yet  shall  bind  the  per- 
son of  full  age  ;  for  being  an  indulgence  which  the  law  allows  infants,  to  pro- 
tect and  secure  them  from  the  fraud  and  imposition  of  others,  it  can  only  be 
intended  for  their  benefit,  and  is  not  to  be  extended  to  persons  of  full  age,  who 
are  presumed  to  act  with  sufficient  caution  and  security  ;  and  were  it  otherwise, 


(n)  1  New.  Rep.  140.  1  Rol.  Abr.  530.         2  Rol.  Rep.  408.     Latch.  10. 
(o)  Bac.  Abr.  tit.  Infancy  and  Age,  I.  3.         (p)   1  Show.  171.     3  Mod.  248.     See  also 
And  see  Perk.  s.  12.  19.    Rol.  Abr.  730. 1.  5.     Bac.  Abr.  tit.  Infancy  and  Age,  I.  4. 


goods  converted  be  in  his  possession  in  virtue  of  a  previous  contract.  Id.  Where  goods 
are  sold  to  an  infant,  and  he  avails  himself  of  infancy  to  avoid  payment,  the  vendor  may 
reclaim  the  goods,  as  having  never  parted  with  the  property  in  them  :  And  in  such  case,  re- 
plevin is  the  proper  action.     Badger  v.  Phinney,  15  Mass.  Rep.  359. 

(230)  See  Conroe  v.  Birdsall,  1  J.  C.  127.  Per  Lansing,  Ch.  J.  Stafford  v.  Roof,  9  Cow- 
en,  626.  Cannon  v.  Msbury,  1  Marsh.  76,  77.  It  has  been  decided,  that  all  contracts 
made  by  infants  against  their  interest,  are  void,  and  not  susceptible  of  confirmation  ;  but 
that  contracts  made  by  them,  with  the  semblance  of  advantage,  arc  merely  voidable.  Rog- 
ers v.  Hurd,  4  Day,  57.  Maples  v.  Wightman,  4  Conn.  Rep.  376.  See  Oliver  v.  Houdlet,  13 
Mass.  Rep.  239,  240.  Radford  v.  WestcoWs  Ex.  1  Des.  696.  In  conformity  to  the  princi- 
ples recognized  in  the  cases  above  cited,  it  has  been  determined,  that  the  bond  of  an  in- 
fant is  voidable  only.  Conroe  v.  Birdsall,  ut  supra.  So,  the  manumission  of  'a  slave,  by 
an  infant,  though  with  the  approbation  of  his  guardian,  is  voidable.  Rogers'  Ex.  v.  Berry, 
10  J.  R.  132.  So,  a  promise  of  marriage,  by  an  infant,  is  voidable  only  ;  because  in  such  a 
contract,  there  is  a  semblance  of  advantage.  Hunt  v.  Peake,  5  Cowen,  475.  Cannon  v. 
Alshury,  ut  supra.  So,  where  an  infant  executed  a  promissory  note,  as  surety  for  another, 
it  was  held  to  be  against  his  interest,  and  therefore,  void.  Maples  v.  Wightman,  ut  su- 
pra. So,  a  warrant  of  attorney,  by  an  infant,  to  confess  judgment,  is  void  ;  and  a  judg- 
ment, entered  in  virtue  of  it,  will  be  vacated,  on  motion.  Bennett  v.  Davis,  6  Cowen,  393. 
But  the  law  will  not  permit  the  privilege  of  an  infant  to  be  made  an  engine  of  fraud  and 
injustice  :  And  thus,  where  an  infant  enters  into  an  executory  agreement,  and  performs 
labour,  or  pays  money,  in  pursuance  of  it,  he  cannot,  by  avoiding  the  contract,  get  back 
the  money,  or  recover  a  compensation  for  his  services  :  His  privilege  will  extend  no  far- 
ther than  to  relieve  him  from  his  contract  so  far  as  it  remains  unexecuted.  M'Coy  v. 
Hoffman,  8  Cowen,  84.  So,  if  an  infant  receive  compensation  for  an  injury,  and  after- 
wards bring  an  action  to  recover  further  damages  for  the  same  injury,  he  shall  recover 
nominal  damages  merely,  where  the  satisfaction  received  appears  to  be  a  compensation  for 
the  injury  ;  but  if  the  compensation  shall  appear  to  be  inadequate,  the  jury  ought  to  assess 
such  further  sum  as  will  amount  to  a  reasonable  satisfaction.  Baker  v.  Lnvett,  6  Mass.  Rep. 
78,  80. 

(231)  See  Oliver  v.  Houdlet,  13  Mass.  Rep.  239.  Cannon  v.  Jlsbury,  1  Marsh.  77.  Rose 
v.  Daniel,  2  Const.  Ct.  549,  557,  558.  Van  Bramer  v.  Cooper,  2  J.  R.  279.  Hartness  v. 
Thompson,  5  J.  R.  160.     Wamsley  v.  Lindenberger  <$•  Co.,  2  Rand.  478. 

*621 


Chap.  7.] 


Of  Contracts  with  Infants. 


621 


this  privilege,  instead  of  being  an  advantage  to  the  infant,  might  in  many  cases 
turn  greatly  to  his  detriment. 

Therefore  it  hath  been  adjudged, (q)  that  if  an  infant  let  a  house  to  J.  S.,  an 
adult,  reserving  rent  ;  and  the  rent  be  in  arrear,  the  infant  may  distrain  for  the 
rent,  or  bring  an  action  of  debt ;  though  it  should  be  objected  that  such  a  con- 
tract, is  not  reciprocal. 

So,  where  an  infant  brought  an  action  on  the  case  by  the  guardian,  and  set 
forth, (r)  that  she  gave  the  defendant  10/.  and  put  herself  to  be  her  servant 
for  seven  years,  and  that,  in  consideration  thereof,  the  defendant  promised  to 
find  her  with  all  necessaries,  save  only  apparel,  and  likewise  promised  to  teach 
her  to  sing  and  dance  ;  and  that  the  defendant,  within  the  time  turned  her 
out  of  the  house,  and  did  not  teach  her  to  sing  and  dance  ;  whereupon  there 
was  judgment  by  default,  and  a  writ  of  enquiry  of  damages  :  it  was  moved 
to  stay  the  filing  of  the  writ  of  enquiry  because  here  was  no  consideration,  the 
agreement  not  being  reciprocal ;  but  the  court  held,  that  though  the  contract 
might  be  void  as  to  the  infant,  yet  it  bound  her  mistress,  who  was  of  full  age ; 
and  therefore  ordered  the  writ  of  inquiry  to  be  filed.  So,  where  an  infant 
brought  an  action  of  assumpsit,  by  his  guardian,  and  declared,  (s)  that  whereas 
the  defendant  entered  into  his  close,  and  cut  his  grass:  that  in  consideration 
the  plaintiff  would  permit  him  to  make  it  into  hay,  and  carry  it  away,  the  defen- 
dant promised  to  give  him  six  pounds  for  it.  To  this  declaration  the  defen- 
dant demurred,  upon  the  ground  that  there  was  no  legal  consideration  to  sup- 
port the  promise ;  for  the  infant  was  not  bound  by  his  permission,  but  might  sue 
the  defendant  for  the  trespass  notwithstanding.  The  Court,  however,  gave 
judgment  for  the  *plaintiff.  And  in  a  similar  action  upon  a  promise  to  pay  the 
plaintiff,  an  infant,  the  value  of  certain  land,  in  consideration  that  he  would 
suffer  the  defendant  to  hold  and  enjoy  it,  after  the  death  of  A.  to  the  time  of  his 
ndl  age;  the  plaintiff  had  judgment,  although  it  was  agreed  that  he  was  not 
bound  by  the  contract,  (t)  So,  on  a  promise  to  an  infant  to  do  such  an  act, 
in  consideration  that  the  infant  promised  to  pay  such  a  sum  ;  in  an  action  of  as- 
sumpsit by  the  infant,  he  had  judgment,  though  the  money  was  not  paid  ;  for 
the  court  held,  that  the  infant's  promise  was  only  voidable  at  his  own  election, 
and  not  at  the  election  of  him  to  whom  it  was  made.(u)  And  if  a  man  of 
full  age  and  a  female  of  fifteen  promise  to  intermarry,  and  after  request  by 
her,  he  marries  another  woman,  an  action  on  the  case  lies  against  him 
for  the  violation  of  the  contract ;  for  though  it  was  objected  that  this  was  nudum 
pactum  and  not  reciprocal,  as  the  man  could  not  compel  her,  being  an  infant,  to 
perform  her  promise,  yet  being  voidable  as  to  herself  only,  as  she  finds  it  for 
her  benefit,  it  shall  bind  him,  being  of  full  age.  (v) 

If  an  infant  lose  money  at  play,  which  the  winner  takes,  such  taking  is  a  con- 
version, and  trover,  or  indebitatus  assumpsit   will  lie  for  the  infant  for  the  sum 


(q)  1  Sid.  446. 
(>•)  1  Sid.  446. 
(j)    1  Vent.  51. 


1  Mod.  25. 

2  Keb.  623. 
1  Mod.  25. 


(0  2  Sid.  109. 

(u)   1  Sid.  41.     1  Keb.  1. 

(v)  3Strn.937.     Fitzg.  175.  «7f. 


?<5 


lo22 


622  Of  Contracts  with  Infants.  [Part  III. 

eo   received :  but  if  the  infant  had  won,  he  might  have  retained  the  money, 
and  no  action  would  have  laid  against  him  for  it.(u>) 

But  where  a  person  under  age  had  paid  a  sum  of  money  as  the  consideration 
for  granting  him  a  lease  of  certain  premises,  but,  upon  his  coming  of  age,  he 
avoided  the  lease,  and  afterwards  brought  an  action  to  recover  back  the  money 
so  paid:  It  was  determined  (a:)  that  he  could  not  maintain  such  an  action. 
And  Gibbs  Ch.  J.,  in  delivering  the  judgment  of  the  court,  said,  "  It  is  quite 
clear  that  a  person  who  accepts  a  lease  during  his  infancy,  may  avoid  it  after 
he  becomes  of  age,  and  before  confirmation.  But  he  has  merely  an  election 
to  avoid  it.  He  may  avoid  the  performance  of  the  covenants  contained  there- 
in, or  the  payment  of  rent,  but  he  can  go  no  fnrther.  But  with  respect  to 
the  consideration  that  an  infant  may  have  given  for  a  lease,  he  is  not  by  law 
entitled  to  recover  it  back,  although  there  may  be  a  complete  failure  of  such 
consideration  by  subsequent  events ;  for  an  infant  having  paid  money  as  a 
consideration  for  a  lease,  is  confined  to  his  election  of  retaining  the  lease,  or 
putting  an  end  to  it,  but  cannot  recover  back  the  money  paid  for  it.  I  have 
not  been  able  to  find  any  case  where  an  action  at  all  analogous  to  the  pres- 
ent has  ever  been  brought,  but  in^that  of  Drury  v.  Drury, (y)  which  was 
afterwards  carried  to  the  House  of  Lords,  under  the  name  of  the  Earl  of 
Buckinghamshire  v.  Drury, (z)  the  question  was,  whether  a  woman  married 
under  the  age  *of  21,  having  before  such  marriage  a  jointure  made  to  her  in  bar 
of  dower,  was  thereby  bound  and  barred  of  dower  within  the  statute  of  the  27 
Hen.  8. :  and  it  was  judged  that  that  statute  extended  to  adult  women  only,  in- 
fants not  being  particularly  named  ;  and  therefore  that  notwithstanding  a  join- 
ture on  an  infant,  she  might  waive  the  jointure,  and  elect  to  take  dower.  That 
point  was  determined  by  Lord  Norlhington.t^)  And  it  further  appears  from  a 
MS.  note  of  Mr.  Justice  Wilmot,(a)  that  Lord  Hardwiche  and  Lord  Mans" 
field  were  of  that  opinion,  and  that  Lord  Mansfield  in  delivering  his  judgment 
in  that  case,  said,  "  that  infants  were  not  bound  by  their  agreements,  was  nev- 
er held  universally  any  where  in  the  world  ;  that  by  our  law  some  agreements 
bind  absolutely,  some  are  void,  some  are  voidable  ;  that  if  the  transaction  were 
fair,  a  bargain  and  sale  of  lands  by  an  infant  for  necessaries  would  be  good, 
that  infancy  never  authorized  fraud,  as  if  goods  were  delivered  to  an  infant  and 
he  embezzled  them,  trover  would  lie  against  him;  or  if  he  took  an  estate,  and 
was  to  pay  rent  for  it,  he  should  not  hold  the  estate,  and  defend  himself  against 
payment  of  the  rent  by  pretence  of  infancy,  but  that  if  an  infant  pays  money 
with  his  own  hand,  without  a  valuable  consideration,  he  cannot  get  it  back  again, 
and  that  if  he  receives  rent,  he  cannot  demand  it  again  when  of  age."  What 
then  is  the  point  in  this  case  1  The  plaintiff  during  his  infancy  paid  a  sum  of 
money  to  the  defendant  for  a  valuable  consideration,  namely,  the  granting  of  a 


(w)  Cited  in  2  Stra.  937.     Fitzg.  279.  Notes  of  Opinions  and  Judgments,  177.     2 

(x)  Holmes  v.  Blogg,  2  Mo.  Rep.  552.  Eden's  Rep.  GO. 

(y)  Hil.  1  Geo.  3."before  Lord  Northington.  (t)  Vide  Wilmofs  Notes  of  Opinions  and 

2  Eden's  Cases  in  Chancery,  39.  Judgments,  181. 

(z)  3Bro.  Pari.  Cas.  492.    2  Ed.  Wilmot's  (a)  Ibid.  226.  2  Eden,  72. 
*G23 


Chap.  7.]         Of  Contracts  with  Infants.  623 

lease,  from  which  he  received  a  benefit  for  a  certain  period.  Lord  Mansfield? s 
dictum,  therefore,  goes  far  beyond  the  present  question,  and  it  appears  not  only 
to  have  been  his  positive  opinion,  but  is  expressly  referred  to  and  approved  of 
by  Mr.  Justice  Wilmot ;  and  as  no  objection  appears  to  have  been  since  raised 
to  it,  it  may  very  fairly  be  adopted  in  the  present  instance,  and  on  that  ground, 
therefore,  we  are  of  opinion  that  this  action  cannot  be  maintained,  the  payment 
in  question  having  been  made  by  the  plaintiff  during  his  infancy. 

2.  Of  Contracts  for  Necessaries.] — It  is  clearly  agreed  in  all  the 
books,  that  if  an  infant  makes  a  contract  for  necessaries,  it  is  neither  void  nor 
voidable  ;(6)(232)  indeed,  if  this  could  be  done  it  is  truly  observed,  (c)  "that 
miserable  must  the  condition  of  minors  be  ;  excluded  from  the  seciety  and 
commerce  of  the  world ;  deprived  of  necessaries,  education,  employment,  and 
many  advantages,  if  they  could  do  no  binding  acts.  Great  inconvenience  must 
arise  to  others,  if  they  were  bound  by  no  act.  The  law,  therefore,  at  the  same 
time  that  it  protects  their  imbecility  and  indiscretion  from  injury  through  their 
own  imprudence,  *enables  them  to  do  binding  acts  for  their  own  benefit,  and, 
without  prejudice  to  themselves,  for  the  benefit  of  others." 

Therefore  if  an  infant  contracts  for  his  necessary  diet,  apparel,  washing, 
lodging,  or  education,  it  shall  bind  him.  (d)  So,  if  he  contracts  for  physic,  or 
for  his  cure  with  a  surgeon  when  he  is  wounded,  (c)  Or,  if  he  be  a  housekeeper 
and  contracts  for  necessaries  for  himself,  his  wife,  and  family.  (/) 

But  an  infant  is  not  liable  for  necessaries  provided  in  order  for  his  mar- 
riage.^) Nor  upon  a  contract  to  pay  so  much  per  annu?n  for  his  diet  and 
schooling,  (h)  So,  a  promise  by  an  infant,  in  consideration  that  A.  had  expend- 
ed 71.  for  his  diet  and  teaching,  to  pay  him  that  sum,  is  not  binding  upon 
him.  (i)  But  instructing  an  infant  in  a  useful  trade,  seems  to  fall  within  the 
description  of  necessaries,  (k) 

A  captain  in  the  army,  being  under  age,  is  liable  to  pay  for  a  livery  ordered 
for  his  servant,  as  necessaries,  but  not  for  cockades  ordered  for  the  soldiers  of 
his  company.  (I)  So,  a  member  of  a  volunteer  corps  being  an  infant  is  liable 
for  regimentals  furnished  him  during  his  nonage,  (m)  But  a  chronometer  is 
not  a  necessary  for  a  lieutenant  in  the  navy.(?*) 

In  all  cases  it  must  appear  that  the  articles  furnished  were  actually  necessary, 
and  suitable  to  the  infant's   estate   and   condition,   of  which  the  court  and  jury 


(b)  Co.  Lit.  172.  a.  (h)    1    Rpl.  Abr.  729.  1.  35.    Pal.  52S. 

(c)  Per  Lord  Mansfield.   3  Burr.  1801.  (i)   Sir  W.  Jones,  182. 

(d)  Co.  Lit.  172.  a.' Sir  W.  Jones,  146.  1S2.  (k)  See  Woodeson's  Lee.  402.  n.  f. 

1  Rol.  Abr.  729. 1.  5,  6.  30.35.     Latcli.  157.  (/)  8  Term  Rep.  578.     See  also  Cart.  215. 

Dy.  104.  b.   in  inarg.     1    Sid.  112.  Mar.  40.  (m)  Coates  v.    Wilson,  5  Esp.  Rep.  152. 

(e)  Co.  Lit.  172.  a.  Pal.  528.  (h)    Verrolles   v.   Ramsey,   Holt's  Ni.  Pri. 
(/)  1  Sid.    112.    Cart.    215.     1  Stra.  168.  Rep.  77. 

(ff)  Ibid. 

(232)  See  Rainwater  v.  Durham,  2  Nott  &  M'Cord,  524.  Reeve's  Dom.  Ret  227.  Hull's 
Ass.  v.  Connolly,  3  M'Cord,  6.  Beeler  v.  Young,  1  Bibb,  519.  Baker  v.  Lovett,  6  Mass.  Rep. 
80.     Per  Parsons,  Ch.  J. 


624  Of  Contracts  with  Infants.  [PM  III. 

will  determine  ;  (o)(233)  and  the  law  distinguishes  between  persons  as  to  the 
fitness  of  necessaries  ;  as,  for  instance,  between  a  nobleman  and  a  gentleman's 
son  :  so  also,  as  to  the  time  and  place  of  education  ;  as  at  school,  Oxford,  and 
the  i?ins  of  court,  (p)  An  infant  who  lives  with,  and  is  properly  maintained 
by  her  parent,  cannot  bind  herself  to  a  stranger  for  necessaries.  (234)  Thus, 
in  the  case  of  Bainhridge  v.  Pickering,  (q)  which  was  an  action  for  feathered 
caps,  and  other  ornamental  apparel  sold  to  the  defendant,  who  at  the  time  of  the 
sale  was  an  infant,  and  lived  with  her  mother.  Gould  Just,  said,  "  If  an  infant 
lives  with  her  parent,  who  provides  such  apparel  as  appears  to  the  parent 
to  be  proper,  so  that  the  child  is  not  left  destitute  of  clothes,  or  other  real 
necessaries  of  life,  I  apprehend  that  the  child  cannot  bind  herself  to  a  stranger 
even  for  what  might  otherwise  be  allowed  as  necessaries :  for  no  man 
shall  take  upon  him  to  dictate  to  a  parent  what  clothing  the  child  shall  wear, 
at  what  time  they  shall  be  purchased,  *or  of  whom.  All  that  must  be  left 
to  the  discretion  of  the  father  or  mother.  And  as  there  is  not  here  any  pretence 
but  that  the  child  was  decently  provided  by  the  mother,  I  think  we  should  give 
no  countenance  to  such  persons  as  inveigle  young  women  into  extravagance 
under  the  pretext  of  furnising  them  with  necessaries,  without  the  previous 
consent  of  the  parent." 

So,  it  is  incumbent  on  a  tradesman  before  he  trust  an  infant  with  what  may 
appear  to  be  necessaries,  to  inquire  whether  he  is  provided  by  his  parents  or 
friends  .  as  was  determined  in  the  case  of  Ford  v.  Fothergill,(r)  which  was  an 
action  of  assumpsit  Sox:  work  and  labour  as  a  tailor.  The  facts  were  these;  the 
defendant,  being  under  age,  came  to  the  house  of  the  plaintiff  in  company  with 
a  gentleman  who  was  previously  a  customer  of  his,  and  ordered  a  coat,  waist- 
coat, and  two  pair  of  breeches,  which  were  to  be  sent  to  the  Grecian  Coffee- 
house, and  "were  accordingly  sent  there.  The  defendant  proved,  that  at  this 
time  he  was  provided  by  his  father  with  all  things  necessary  for  his  support. 
He  had  been  very  extravagant,  and  his  father  had,  in  the  course  of  the  year 
1793,  when  this  debt  was  contracted,  paid  many  other  debts  contracted  with 
other  tailors  to  a  large  amount.  Lord  Kenyon  Ch.  J.  said,  "  Nothing  is  clearer 
in  the  law  than  that  an  infant  cannot  contract  a  debt  except  for  necessaries.  It 
is  absolutely  necessary  that  he  should  have  the  power  of  making  that  contract, 
otherwise  he  would  starve.     As  to  the  plaintiff  not  knowing  his  fortune  it  is  no 


(o)  Bac.    Abr.  tit.   Infancy  and    Ace,  I.         (<?)  2  Bl.  Rep.  1325. 
1.  Com.  Dig.  tit.  Enfant,  B.  5.  Cro.  Eliz.  5S3.         (r)  Peake's  Cas.  N.  P.  229.     1  Esp.  Rep. 
(/))  Vide  Cart.   215.  211.  S.  C. 

(233)  Whether  the  articles  furnished  to  an  infant  be  necessary  and  suitable  to  his  con- 
dition, is  a  question  of  law  to  be  decided  by  the  court.  Beeler  v.  Young,  1  Bibb.  519. 
Money,  a  horse,  saddle  and  bridle,  are  not  necessaries,  for  which  an  infant  is  bound  to 
pay.    "id.  Rainwater  v.  Durham,  2  Nott  &  M'Cord,  524. 

(234)  See  Wailing  v.  Toll,  9  J.  R.  141.  and  also  note  (c)  Id.  Hull's  Ass.  y.  Connolly, 
3  M'Cord,  6.  A  parent  is  bound  to  furnish  his  infant  children  with  necessaries  ;  and  if 
he  neglect  so  to  do,  it  seems,  that  a  stranger  may  supply  them,  and  charge  the  parent 
with  the  amount:  But  where  the  infant  lives  with  his  parent,  it  must  be  a  case  of  strong 
necessity  to  justify  the  interference  of  a  third  person.  Van  I'alkinbvrgh  v.  Watson,  13  J. 
R.    4*0. 

*625 


Chap.  7.]  Of  Contracts  with  Infants.  625 

excuse  ;  it  was  incumbent  on  him  to  enquire  into  that,  and  to  prove  it  to  the 
jury.  Whether  he  was  living  with  his  father  or  not,  the  person  who  dealt  with 
him  was  bound  to  enquire  and  know  who  he  was.  He  was  living  at  a  coffee- 
house, itself  no  mark  of  a  wary  disposition  ;  the  plaintiff  should  have  enquired 
there,  and  gone  to  his  father  and  enquired  of  him  whether  he  was  in  want  of 
these  clothes.  Circumstanced  as  this  case  is,  such  an  enquiry  ought  to  have 
been  made." 

If  an  infant  comes  to  a  stranger,  who  instructs  him  in  learning,  and  boards 
him,  there  is  an  implied  contract  in  law,  that  the  party  shall  be  paid  as  much 
as  his  board  and  schooling  are  worth  ;  but  if  the  infant,  at  the  time  of  his  going 
there,  was  under  the  age  of  discretion,  or  if  he  were  placed  there  by  a  guar- 
dian, or  friend,  who  agreed  to  pay  for  his  board  and  education,  the  party  that 
boarded  him  has  no  remedy  against  the  infant,  but  must  resort  to  the  person 
with  whom  he  agreed. (s)  It  is  also  said,(*)  "that  it  hath,  of  late  years,  been 
several  times  determined,  that  where  a  parent  or  relation,  &c.  places  an  infant 
at  a  boarding  school,  the  credit  being  given  to  such  parent,  relation,  &c.  the 
master  cannot  have  any  remedy  against  the  infant." 

*A  fine  due  by  an  infant  on  an  admittance  to  a  copyhold  estate,  is  recover- 
able against  him  during  his  minority.  Thus,  m  the  case  of  Evelyn,  bart.  v. 
Chichester,  (u)  where  it  appeared  that  a  copyhold  estate  devolved  on  the  de- 
fendant when  he  was  an  infant  of  six  years  of  age :  a  fine  was  assessed,  and 
he  was  admitted  to  the  estate  on  his  coming  of  age.  Assumpsit  was  brought 
for  this  fine  ;  and,  upon  a  case  reserved  for  the  opinion  of  the  Court  of  King's 
Bench,  the  question  was,  whether  assumpsit  would  lie  for  the  fine,  which  the 
jury  found  to  be  a  reasonable  one.  The  Court  held  clearly,  that  the  action 
lay:  toAper  Yates  Just.  "  If  the  defendant  was  still  an  infant,  I  should  think 
this  action  maintainable.  Debt,  perhaps,  would  not  lie,  because  an  infant  can- 
not wage  his  law ;  but  assumpsit,  I  think,  would  lie,  as  the  infant  continued  to 
occupy  and  enjoy  the  estate.  In  2  Bulstr.  69.  Kir  ton  v.  Elliot,  the  plaintift 
recovered  against  an  infant  the  rent  upon  a  lease  made  to  him  :  and  it  is  there 
said,  "  if  a  lease  be  made  to  an  infant,  and  he  occupies  and  enjoys,  he  shall  be 
charo-ed  with  the  rent.  An  infant  mav  contract  for  necessaries.  He  could  not 
have  received  the  rents  and  profits  of  this  copyhold  without  admittance  ;  and  he 
must  previously  pay  the  fine  for  such  admittance.  But  hero,  he  has  affirmed 
the  whole  transaction :   lie  has  enjoyed  two  years  since  he   came  of  age." 

If  an  infant  contracts  for  necessaries,  and  enters  into  a  single  bill,  it  is  said,(,r) 
he  shall  be  bound  by  such   obligation  :  (235)   though  he  certainly  is  not  liable 


(s)Duneombv.Tickridge,  Allen 94  (x)  1  Rol.  Abr.  7-20.1.20.    Cro.  El.  020 

(t)  3Bac.  Abr.  595.  in  marg.  last  edit,  by  1  Lev.  86.  Co.  Lit.  172.  a.     Garth.   ICO.  2  II. 

Gicillim.  Bl.  514. 
(m)  3  Bur.  1717.     Bul.N.  P.  154. 


(235)  A  negotiable  note,  eiven  by  an  infant,  even  for  necessaries,  is  void.  Sw«ey  v.  I  nn- 
derheyden's  Adni.  10  J.  R.  33.  Though  the  note  of  an  infant  has  no  binding  force,  as  such  ; 
yet,  it  would  seem,  if  it  be  given  for  necessaries,  that  an  action  upon  it  against  the  nia^'(l'> 
may  be  sustained.     Beeler  v.  Young,  1  Bibb,  519.     SteKnapp  v.  Croibij,  1   Mass.  hen.  479. 

#5S3 


626  Of  Contracts  with  Infants.  [Part  III. 

upon  a  bill  of  exchange  or  other  negotiable  instrument,  (y)  So,  if  money  be 
actually  laid  out  and  expended  in  the  purchase  of  necessaries  for  an  infant,  he 
shall  be  liable  for  the  amount  so  laid  out.  (z)  So,  money  paid  for  an  infant  to 
procure  his  liberation  from  an  arrest  for  a  debt  contracted  for  necessaries,  may 
be  recovered  against  him  by  action  at  law.  (a)  But  though  an  infant  may  bind 
himself  in  a  single  bill  for  necessaries,  yet  if  he  enter  into  an  obligation, 
and  a  penalty  be  annexed  to  it,  such  obligation  is  void :  Thus  in  the  case 
of  Ayliff  v.  Archdale,(b)  where  it  appeared  upon  demurrer,  that  the  plaintiff 
had  paid  certain  money  for  the  necessary  meat  and  drink  of  the  defendant, 
being  an  infant,  and  took  an  obligation  in  the  double  sum  for  the  payment 
thereof;  and  whether  this  were  good  or  voidable  was  the  question.  The 
whole  court  held  it  to  be  void :  but  if  the  plaintiff  had  taken  an 
obligation  of  the  very  sum  which  he  laid  out  for  his  necessary  main- 
tenance, it  had  been  otherwise.  If,  *however,  an  infant  and  a  surety  enter 
into  an  obligation  with  a  penalty  for  necessaries  found  for  the  former,  the  bond 
will  bind  the  surety,  although  it  will  not  bind  the  infant.  It  is  also  said,(c) 
that  if  an  infant  becomes  indebted  for  necessaries,  and  enters  into  a  bond,  with 
a  penalty  for  the  amount,  this  shall  not  drown  the  simple  contract,  because  the 
bond  has  no  force.  So,  if  one  lends  money  to  an  infant,  who  actually  lays  it 
out  for  necessaries,  yet  this  shall  not  bind  the  infant,  nor  subject  him  to  an  ac- 
tion, for  it  is  upon  the  lending  that  the  contract  must  arise  ;  and  the  law  will 
not  intrust  an  infant  with  the  application  and  laying  out  of  money  ;  and  the  in- 
fant's applying  it  afterwards  for  necessaries,  will  not,  by  matter  ex  post  facto* 
entitle  the  plaintiff  to  an  action,  (d)  So,  an  insimul  computassit,  or  account  stat- 
ed, lies  not  against  an  infant,  though  the  particulars  of  the  account  be  for  ne- 
cessaries ;  for  the  law  consider  an  infant  as  not  having  sufficient  discretion  to 
agree  to  an  account,  and  the  assumpsit  is  upon  the  account.(c) 

3.  Of  Contracts  made  with  Infants  out  of  England.] — If  an  action 
be  brought  against  an  infant  upon  a  contract  made  with  him  in  Scotland,  to 
which  infancy  is  pleaded,  or  given  in  evidence  under  the  general  issue,  the  de- 
fendant, at  the  trial,  must  be  prepared  to  prove,  what  the  law  of  that  coun- 
try is  in  regard  to  infants,  otherwise  he  will  be  liable.  Thus,  in  the  case  of  Male 
v.  Roberts,(f)  which  was  an  action  of  assumpsit  for  money  paid,  laid  out,  and 
expended  to  the  use  of  the  defendant,  money  lent  and  advanced,  to  which  the 
defendant  pleaded  the  general  issue  of  non  assumpsit.  The  case,  as  opened 
by  the  plaintiff's  counsel,  was,  that  the  plaintiff  and  the  defendant  were  per- 
formers at  the  Royal  Circus ;  while  the  company  were  performing  at  Edin- 
burgh, in  Scotland,  the  defendant  had  become  indebted  to  one  Cockburn  for  li- 
quors, of  different  sorts,  with  which  Cockburn  had  furnished  him  ;   not  having 


(y)  See  Williams  v.   Watts,  1  Campb.  552.  also  Fisher  v.  Mowbray,  8  East  Rep.  330.      ] 
(z)  5  Mod.  363.     10  Mod.  G7.     12    Mod.         (c)  Bac.   Abr.  tit.  Infancy  and  Age,  I.  1. 
19J  '  (</)  Vide  1  Salk.  279.  387.     5  Mod.  368. 

(a)  5  Esn.  Rep.  28.  10  Mod.  67.  Bui.  N.  P.  154 

(b)  Cro.  El.  920.     See  also  Co.  Lit,  172.         (e)   Trueman  v.  Hunt,  1  Term  Rep.  40. 
o.  Mo.  679.     Godb.  219.  2  H.  Bl.  514.  See         (/)  3Esp.Rep.  163. 

*627 


Chap.  7.]  Of  Contracts  with  Infants.  627 

discharged  the  debt,  and  it  being  suspected  that  the  defendant  was  about  to  leave 
Scotland,  Cockburn  arrested  him,  by  what  is  there  termed  a  writ  of  Fuge ;  the 
object  of  which  is  to  prevent  the  debtor  from  absconding.  The  defendant  being 
then  unable  to  pay  the  money,  the  plaintiff  paid  it  for  him,  and  he  was  liberat- 
ed. The  present  action  was  brought  to  recover  the  money  so  paid,  as  money 
paid  to  his  use.  The  defence  relied  upon  was,  that  the  defendant  was  an 
infant  when  the  money  was  so  advanced.  But  Lord  Eldon  Ch.  J.  said  :  "  It 
appears  from  the  evidence  in  this  case,  that  the  cause  of  action  arose  in  Scot- 
land, the  contract  must  be  therefore  governed  by  the  laws  of  that  coun- 
try where  the  contract  arises.  Would  infancy  be  a  good  defence  by  the  law 
of  Scotland,  had  the  action  been  commenced  there  V  For  *the  defendant  it 
was  contended,  that  the  contract  was  to  be  governed  by  the  laws  of  England, 
in  which  case  the  plaintiff  could  recover  for  necessaries  only.  That  at  all 
events  it  should  not  be  presumed  that  the  laws  were  different,  and  as  it  appear- 
ed that  the  debt  did  not  accrue  for  necessaries,  the  plaintiff  could  neither  recov- 
er on  the  counts  for  money  paid,  or  for  money  lent  to  an  infant.  His  Lord- 
ship then  said,  "  What  the  law  of  Scotland  is  with  respect  to  the  right  of  re- 
covering against  an  infant  for  necessaries,  I  cannot  say  ;  but  if  the  law  of  Scot- 
land  is,  that  such  a  contract  as  the  present  could  not  be  enforced  against  an 
infant,  that  should  have  been  given  in  evidence  ;  and  I  hold  myself  not  warrant- 
ed in  saying,  that  such  a  contract  is  void  by  the  law  of  Scotland,  because  it  is 
void  by  the  law  of  England.  The  law  of  the  country  where  the  contract  arose, 
must  govern  the  contract ;  and  what  that  law  is,  should  be  given  in  evidence 
to  me  as  a  fact.  No  such  evidence  has  been  given,  and  I  cannot  take  the  fact 
of  what  that  law  is,  without  evidence." 

4.  Of  Contracts  with  Infants,  affirmed  by  a  new  promise  made 
when  at  full  age.] — The  privilege  which  the  law  allows  to  infants  being  en- 
tirely calculated  for  their  benefit,  and  to  prevent  frauds  being  practised  upon  them 
during  their  minority,  hence  at  their  full  age,  they  are  at  liberty  either  to 
affirm  or  disaffirm  their  contracts,  or  to  avoid  them.  (236)    Therefore,  if  an  in- 


(236)  rt  is  said,  that  there  are  three  modes  by  which  the  contracts  of  infants  may  be 
affirmed.  1.  By  an  express  ratification.  2.  By  the  performance  of  acts,  from  which  an 
affirmance  may  be  reasonably  inferred.  3.  By  the  omission  to  disaffirm,  witbin  a  rea- 
sonable time.  Kine  v.  Beebe,  6  Conn.  Rep.  494.  As  to  the  first  mode  of  ratification,  see 
Buckner  v.  Beverley's  Trustees,  1  Wash.  296.  Whitney  v.  Dutch,  14  Mass.  Rep.  457. 
Ford  v.  Phillips,  1  Pick.  202.  An  award,  on  a  submission  by  guardian,  that  an  infant 
heir  shall  pay  an  annuity  to  the  widow  in  lieu  of  dower,  is  voidable  only,  and  may  be 
affirmed    by  the  infant  at  full  age.     Thus,  in  a  letter  to    the  widow  from  the  heir,  after 

coming  of  age,  inclosing  money,  he  says,  "  You  will  find  inclosed  the  sum  of in  part 

towards  your  right  of  dower.  The  remainder  I  shall  forward  you  in  a  few  days.  It  was 
entirely  unexpected  to  me  that  it  was  not  paid  before,  as  I  had  lodged  property  in  my 
brother's  hands  to  meet  the  payment :"  This  was  held  to  boa  ratification  of  the  award. 
Barnabyv.  Barnaby,  1  Pick.  221. 

But  a  new  promise  by  an  infant  after  coming  of  age,  made  while  the  writ  is  in  the  officer's 
hands,  and  before  it  is  served,  will  not  support  the  action.  Ford  v.  Phillips,  ut  supra.  As 
to  the  second  mode  of  affirmance,  see  Hubbard  v.  Cummings,  1  Greenl.  11.  The  case  was 
this  :  Certain  lands  were  granted  to  an  infant,  and  at  the  same  time,  the  same  lands  were, 
by  the  grantee,  mortgaged  to  the  grantor;  the  infant  continwed  in  possession  of  the  lands, 
after  his  arrival  at  full  age,  and  afterwards,  for  a  valuable  consideration,  conveyed  the  lands 

*628 


628  Of  Contracts  with  Infants.  [Part  III. 

fant  be  furnished  with  goods,  which  do  not  come  within  the  description  of  ne- 
cessaries, and  after  he  comes  of  age,  he  ratifies  the  contract  by  a  promise  to  pay, 
he  is  bound  by  such  promise,  and  liable  to  be  sued  thereon  for  the  debt.(g-) 
So,  if  an  infant  give  a  bond,  and  at  full  age  promise  payment,  it  shall  bind 
him.  (h)  And  if  a  man  enters  into  an  obligation  for  payment  of  money  for 
an  infant,  and  the  infant,  after  he  comes  of  age,  promises,  in  consideration 
that  the  obligee  had  entered  into  the  bond  and  paid  the  money,  he  would 
pay  him  the  debt ;  this  promise  is  valid  and  sufficient  to  support  an  action,  (i) 
So,  also,  where  an  infant  borrowed  money,  and  afterwards  at  full  age  promis- 
ed payment ;  this  is  a  good  consideration  for  the  promise,  and  he  shall  be 
charged,  (j)  But  to  bind  a  person  to  the  payment  of  a  debt  contracted  during 
his  infancy  by  a  new  promise,  made  by  him  at  full  age,  it  must  be  an  absolute 
unequivocal  promise  to  pay.  For,  in  the  case  of  Thrupp  v.  Fielder,  (k)  Lord 
Kenyon  Ch.  J.  said,  "  The  case  of  infancy  differs  from  the  statute  of  limita- 
tions :  in  the  latter  case,  a  bare  acknowledgment  has  been  held  to  be  sufficient. 
*In  the  case  of  an  infant,  I  shall  hold  an  acknowledgment  not  to  be  sufficient, 
and  require  proof  of  an  express  promise  to  pay,  made  by  the  infant  after  he 
has  attained  that  age  when  the  law  presumes  that  he  has  discretion.  Payment 
of  money  made,  as  in  the  present  case,  is  no  such  promise."  And  such  a 
promise  must  also  be  made  voluntarily,  and  given  with  knowledge  that  the  par- 
ty was  discharged  by  his  non-age. (Z)  So,  if  a  promise  be  made  by  one  after 
he  comes  of  age,  to  pay  a  debt  contracted  during  his  minority  when  he  is  able, 
his  ability  to  pay  must  be  proved  ;  but  it  is  sufficient  to  show  his  ostensible  ap- 
pearance, and  his  circumstances  as  they  are  open  to  the  observation  of  the 
world,  (m) 

5.  Of  a  Joint  Contract  made  with  an  Infant  and  an  Adult.]  If  a 
contract  is  made  by  an  infant  and  an  adult,  they  cannot  both  be  sued  thereon, 
but  the  action  should  be  brought  against  the  adult  only,  as  being  the  sole  con- 
tracting party  in  point  of  law.  (237)  Thus,  in  the  case  of  Chandler  v.  Parkes 
and   Danks,{n)  which  was  an  action  of  assumpsit,  for  work  and  labour,   and 


(g)   Southerton  v.    Witlock,    2    Stra.   690  (I)  Hurmer  v.   Killing,  5  Esp.  Rep.      102. 

Borthwick  v.   Camithers,  1  Term  Rep.  648.-  Vide  Cro.  El.  700.  S.  P. 

(h)  Cro,  El.     127.    700.     Dy.  272.   a.    in  (m)  Cole  v.  Saxby,  3  Esp.  Rep.  159. 

marg.     1  Rol.  Abr.  18.  1.  50.  (n)  3   Esp.    Rep.    76.     5    Esp.    Rep.  47. 

(i)  Edmond's  Case,  3  Leon.  164.  4  Leon.  5.  S.  P.     3  Taunt.   Rep.   307.     4  Taunt.  Rep. 

(j)  Comb.  3S1.  468. 

(fe)  2  Esp.  Rep.  628. 


to  another,  with  covenants  of  warranty  :  It  was  held,  that  these  acts  amounted  to  an  af- 
firmance of  the  original  contract.  As  to  the  third  mode  of  ratification,  see  Kline  v.  Beebe,  ut 
supra. 

(237)  See  Hull's  Ass.  v.  Connolly,  3  M'Cord,  6.  Where  one  co-defendant  pleads  his 
infancy,  the  plaintiff  may  enter  a  nolle  prosequi  as  to  him,  and  proceed  to  judgment  against 
the  other  defendants.  Harlness  v.  Thompson,  5  J.  R.  160.  But,  where  a  promissory  note 
was  executed  by  one  of  two  partners  in  the  name  of  the  firm,  one  of  the  partners  being 
an  infant  at  the  time  of  executing  the  note  ;  and  an  action  was  brought  on  the  note  by 
the  adult  partner  only  ;  it  was  held,  that  the  action  could  not  be  sustained,  the  act  of 
the  infant  being  voidable  only,  at  his  election,  and  not  void.  Wamslty  v.  Lindmberger 
Sf  Co.  2  Rand.  478. 

*029 


Chap.  7.]      Of  a  Parent's  Liability  J  or  Accessaries.      629 

materials  found  for  both  defendants.  Parkes,  one  of  the  defendants,  pleaded 
the  general  issue  of  non  assumpsit  ;  the  other  defendant  pleaded  infancy.  The 
plaintiff  entered  a  nolle  prosequi  as  to  the  defendant  Dunks,  and  proceeded  to 
issue  with  the  other  defendant  Parkes.  Lord  Kenyon  Ch.  J.,  on  the  case  being 
opened,  and  looking  into  the  record,  said,  "  he  doubted  how  the  plaintiff  could 
recover  against  one  defendant  only,  in  an  action  on  a  contract  which  he  by  his 
declaration  had  stated  to  be  a  joint  one  against  two ;  that  the  infancy  being  ad. 
mitted,  the  plaintiff  ought  to  have  discontinued,  and  commenced  a  new  action 
against  the  adult  defendant,  as  being  the  sole  contracting  party  according  to 
the  legal  effect  of  such  a  contract,  which  was  void  against  the  infant."  The 
plaintiff's  counsel  contended,  that  the  promise  of  an  infant  was  not  void,  but 
voidable  only  ;  and  if  the  plaintiff  had  declared  against  the  adult  defendant  on- 
ly, he  could  have  pleaded  in  abatement,  that  the  contract  was  a  joint  one ;  and 
quashed  the  plaintiff's  writ.  Lord  Kenyon  said,  "he  continued  of  the  same 
opinion,  for  the  plea  in  abatement  could  not  prevail,  when  it  was  disclosed  that 
the  other  defendant  was  an  infant." 

An  infant  must  sue  and  defend  by  guardian  and  not  by  attorney. (o)(238) 
6.  Of  the  Liability  of  a  Parent  to  provide  Necessaries  for  his 
Children.] — A  father  is  bound  to  provide  necessaries  for  his  own  children. 
(239)  But  a  second  husband  cannot  at  law  be  compelled  to  *maintain  his  wife's 
children  by  a  former  husband,  (p)  Indeed,  if  the  second  husband  do  maintain 
such  children  it  is  a  good  consideration  for  a  promise  by  them  when  they 
come  of  age  to  repay  the  expence  of  their  maintenance  respectively  ;  especially 
where  the  second  husband  is  a  man  of  small  substance,  and  the  children  have  a 
competent  provision  to  receive  when  they  come  of  age,  and  he  made  no  appli- 
cation to  Chancery  for  an  allowance  out  of  the  fund,  as  he  might  have  done. 
Thus,  in  the  case  of  Cooper  v.  Martin,(q)  which  was  an  action  of  assumpsit 
for  meat,  drink,  washing,  lodging,  and  other  necessaries  provided  by  the 
plaintiff  for  the  defendant  for  seven  years.  At  the  trial,  before  Grose  J.  at 
the  Spring  Assizes,  1803,  for  the  county  of  Suffolk,  the  case  appeared  to  be 
as  follows  :  The  defendant  was  the  son  of  the  plaintiff's  wife  by  a  former 
husband,  and  he  and  three  other  children  of  the  former  marriage  were  maintain- 
ed by  the  plaintiff  for  several  years  during  their  minority  ;  and  after  the  defen- 
dant came  of  age,  and  a  demand  was  made  upon  him  by  the  plaintiff  for  the 
expences  of  his  maintenance,  the  defendant  promised  to  pay  it.  The  situation 
of  the  family  was  this  ;  the  defendant's  father  died  insolvent,   and  the  plaintiff 


(o)  Co.  Lit.  135.  b.    2  Inst.  261.  390.  and         (/>)   Tubb   v.   Harrison,  4  Term  Rep.  118. 
see2Saund.  Rep.  1 17.   f.    1.     2.  Stra.  784.  (»/)  4  East   Rep.  7G. 


(238)  See  Arnold  v.  Sandford,  14  J.  R.  417.  An  infant  can  appear  by  guardian  only,  tbe 
power  of  appointing  whom,  ad  litem,  is  incident  to  all  courts.  Mocfcey  v.  Gray,  2  J.  R.  192. 
See  also,  Knapp  v.  Crosby,  1  Mass.  Rep.  479.  Where  an  infant,  in  a  suit  against  him,  ap- 
pears personally,  the  error  is  fatal.  Sliver  v.  Shelback,  1  Dall.  165.  Moore  v.  M'Ewcn,  5  Serg. 
&  R.  373. 

(239)  See  ante,  notes  (233)  (234). 

77  *630 


630         Of  a  Parent's  Liability  for  Necessaries.    [Part  III. 

did  not  appear  to  have  any  substance  of  his  own,   having   been  obliged   to 
sell  a  small  estate,  which  he  had  at  the  time  of  his  marriage,  to  satisfy  cer- 
tain creditors  to  whom  his  wife  had  bound  herself  for  her  former  husband's 
debts.     But  she   had  a   freehold  estate  of  about  ]  00/.  per  annum  clear  value, 
with  a  house  upon  it,  in  which  she  and  her  children  were  living  when  she  mar- 
ried the  plaintiff,  and  in  which  they  all  continued  to  reside  for  some  years,  till 
the  defendant  left  them,  when  about  the  age  of  nineteen.     This  estate  of  hers, 
and  the  fortune  of  the  defendant  and  the  rest  of  her  children  came  to  them  by 
the  will  of  her  uncle,  whereby  he  devised  all  his  messuages,  lands,  &c.  at 
Wickham,  to  certain  trustees,  in  trust,  to  pay  the  clear  rent  and  profits  to  his 
niece  Ann,  the  wife  of  John  Martin,  during  her  life,  for  her  own  separate  use ; 
remainder  to  certain  of  her  children.     He  then  devised  about  207.   a  year  in 
land  to  each  of  her  children,  (including  the  defendant,)  with  a  proviso  incase  of 
the  death  of  any  of  the  children  before  the  age  of  twenty-one  years  respectively, 
without  leaving  issue  of  their  body,  that  the   estate  so  given  to  the  child  so  dy- 
ing was  to  be  sold  by    the  trustees,  and  the  money  to  be  shared  among  the  sur- 
vivors, as  and  when  they  should  respectively  come  of  age.     And  to  each  of  the 
children  was  further  given  a  legacy  of  500/.,  and  the  testator  directed  the  same, 
with  the  accumulating  interest,  to   be  rpaid  as  and  when  they  should  respec- 
tively attain  the  age  *of  twenty-one  years,  with  the  same  proviso  as  before  in 
case  of  the  death  of  either  before  age.     It  also   appeared  that  the  plaintiff  had 
brought  up  the  children,  and  given  them  boarding  in  a  manner  suitable  to  their 
expectations,  but  beyond  *\vhat  could  have:been  expected  of  him,  upon  a  sup- 
position that  no  provision  was  made  for  them  out  of  which  he  might  thereafter 
be  reimbursed   when  they  came  of  age.     A  sister  of  the  defendant,  who  still 
lived  in  the  plaintiff's  family  proved  that  in  a  conversation  with  the  defendant, 
in  which  she  had  mentioned  her  own  intention  of  paying  for  her  board,  the  de- 
fendant said  that  he  should  have  paid  the  plaintiff,  but  for  his  elder  brother, 
who  had  advised  him  not  to  do  so.     The  plaintiff's  claim  was  at  the  rate  of 
twenty  guineas  a-year  board,  washing,  and  lodging  ;  for  five  years  and  upwards. 
The  learned  judge  left  it  to  the  jury,  whether   the  plaintiff  had  supplied  the 
defendant  with  more  than  his  state  and  condition   required  1  that  if  he  had  not, 
or  to  the  extent  at  least  that  was  necessary   and  proper,  it  was  a  meritorious 
consideration  to  support  the  promise  made  by  the  defendant  after  he  came  of 
age.     The  jury  were  of  opinion  that  the   expence  incurred  by  the  plaintiff  in 
the  maintenance  of  the  defendant  amounted  to  20/.  a-year,  but  that  according  to 
the  defendant's  state  and  condition  there  ought  not  to  have  been  more  than  10/. 
a-year  expended  upon  him  ;  and  therefore  they  found  a  verdict  for  the  plaintiff 
for  50/.  for  5  years.     And  the  defendant  had  leave  to  move  for  a  rule  either  to 
enter  a  nonsuit,  if  the  Court  thought  that  the  action  was  not  maintainable,  or  why 
a  new  trial  should  not  be  had.     A  motion  to  this  effect  was   accordingly  made 
in  the  court  of  King's  Bench.     But  that  Court,  after  argument,  were  of  opinion 
that  the  action  was  maintainable ;  and  therefore  refused  the  rule. 

Lord  ElUnborough  Ch.  J.  said  :  "  As  to  the  general  obligation  of  parents 

*e-3i 


Chap.  7.]   Of  a  Parents  Liability  for  Necessaries.        631 

and  children  to  provide  for  each  other,  in  Tubb  v.  Harrison,{r)  which  is  the 
latest  decision  upon  the  subject,  and  in  which  the  other  authorities  were  con- 
sidered, it  was  holden  to  extend  only  to  natural  relations.  Then  the  plaintiff, 
not  standing  in  that  relation  to  his  wife's  children  by  her  former  husband,  was 
not  bound  by  the  act  of  marriage  with  their  mother  to  maintain  them,  but  stood 
in  that  respect  in  the  situation  of  any  other  stranger.  And  having  done  an  act 
beneficial  for  the  defendant  in  his  infancy,  it  is  a  good  consideration  for  the  de- 
fendant's promise  after  he  came  of  age.  In  such  a  case  the  law  will  imply  a 
request;  and  the  fact  of  the  promise  has  been  found  by  the  jury.  The  cases 
both  at  law  and  in  equity  have  certainly  gone  on  considering  a  child  so  circum- 
stanced as  being  entitled  to  maintenance  out  of  the  fund,  and  the  plaintiff  might 
have  applied  to  Chancery  for  an  allowance  in  this  case :  but  though  he  did  not 
make  such  application,  but  expended  his  own  funds  for  the  benefit  of  the  defen- 
dant, it  is  a  good  consideration  at  least  for  the  subsequent  promise  to  repay  him." 

Lawrence  J.  "  The  early  cases  referred  to,  (5)  proceeded  upon  a  mistake 
in  considering  the  maintenance  of  the  children  as  a  debt  of  the  *mother,  who 
has  married  a  second  husband,  or  as  a  debt  on  her  estate.  The  wants  of  the 
children  are  only  a  ground  for  an  order  of  maintenance  on  the  parent  if  of  suffi- 
cient ability.  But  when  she  has  parted  with  that  ability  by  her  second  mar- 
riage she  is  no  longer  liable.  The  husband  only  takes  her  debts  ;  but  this  is  no 
debt  of  hers.  Ceasing  to  be  of  ability,  the  maintenance  of  the  children  could 
not  have  been  enforced  by  an  order  against  her,  and  therefore  could  not  have 
been  enforced  at  all.  Then  the  plaintiff  having  conferred  the  benefit  without 
any  obligation,  it  is  a  good  consideration  for  the  promise  by  the  defendant 
after  he  came  of  age." 

But,  if  a  husband  receives  his  wife's  children  by  a  former  husband  into  his 
house,  and  they  become  part  of  his  family,  he  shall  be  deemed  to  stand,  loco 
parentis,  and  be  liable  to  a  contract  made  by  his  wife  for  their  education. 
Thus,  in  the  case  of  Stone  v.  Carr,(t)  which  was  an  action  of  assumpsit, 
brought  by  the  plaintiff,  who  was  a  schoolmaster,  for  the  education  and  mainte- 
nance of  an  infant  child.  It  was  proved  that  the  child  was  the  son  of  the  defen- 
dant's wife,  by  a  former  husband.  On  the  defendant's  marriage  with  the  child's 
mother,  he  had  taken  possession  of  a  house  which  she  occupied  with  her 
children,  and  which  house  had  belonged  to  the  first  husband  :  the  business 
she  had  carried  on  was  continued,  and  the  children  were  suffered  to  live  with 
him  as  part  of  the  family,  and  provided  for  by  him  while  he  was  at  home.  For 
the  defendant  it  was  given  in  evidence, — that  he  was  gunner  of  an  India  ship  ;• 
that  during  his  absence  on  a  voyage,  the  boy  had  been  put  to  school  by  his 
mother  to  the  plaintiff.  His  counsel  then  contended,  that  as  he  had  never 
made  any  contract,  or  agreement  with  the  plaintiff,  he  could  not  be  charged, 
by  reason  of  any  implied  liability  ;  and  cited  the  case  of  Tubb  v.  Harrison,(u) 
as  in  point. 

(r)  4  Term  Rep.  118.  Foley,  3!).  42.  (I)  3  Eap.  Rep.  1. 

(»)  Sty.  283.  2  Bulstr.  346.  Comb.  321.  («)  Ante,  G30. 

*632 


633         Of  a  Parent's  Liability  for  Necessaries.  [Part  III. 

Lor  J  Kenyon  Ch.  J.  after  referring  to  the  case  cited,  said  the  present  was  dis- 
tinguishable from  that :  "  there  was  no  doubt  if  a  man  married  a  woman  having 
children  by  the  former  husband,  he  might  refuse  to  provide  for  them,  and  un- 
der the  authority  of  the  King  v.  Munden,  cited  in  the  case  of  Tubb  v.  Harri- 
son, he  could  not  be  compelled  to  do  it ;  but  if  a  man  did  not  so  refuse  to  enter- 
tain them,  and  took  the  children  into  his  family,  he  then  stood  loco  parentis 
as  to  them.  Such  was  the  case  here  :  he  had  so  adopted  them,  and  having  gone 
abroad,  and  left  them  in  the  care  of  his  wife,  he  should  hold  him  to  be  bound 
by  her  contracts  made  for  their  maintenance  and  education.  If  she  had  any 
property  by  her  first  husband,  the  case  was  stronger  ;  for  then  part  of  the  prop- 
erty of  which  the  defendant  possessed  himself,  belonged  to  the  children :  but 
even  had  their  father  died  insolvent,  it  would  not  alter  his  opinion.  The  de- 
fendant on  his  marriage  had  no  right  to  take  possession  of  the  house  and 
business  :  he  had  thereby  confounded  all  the  boundaries  of  *the  property,  and 
placed  himself  in  a  state  of  responsibility.  He  therefore  directed  the  jury  to 
find  a  verdict  for  the  plaintiff",  which  they  did  accordingly. 

So,  if  a  husband,  living  in  a  state  of  separation  from  his  wife,  suffers  his 
own  children  to  reside  with  their  mother,  he  is  liable  for  necessaries  furnished 
to  the  children  :  for,  as  a  father,  he  has  a  right  to  the  custody  of  his  children, 
and  may  obtain  possession  of  their  persons  by  habeas  corpus  ;  but  where  he 
does  not  assert  that  right,  and  suffers  them  to  remain  with  their  mother,  he 
thereby  constitutes  her  as  his  agent,  and  authorizes  her  to  contract  those  debts 
for  clothing  and  other  necessaries  ;  but  this  is  matter  which  should  be  left  to 
the  jury,  (v) 

But  where  a  father  living  in  the  country  gives  his  son,  residing  in  London,  a 
reasonable  allowance  for  his  expences,  the  son  is  alone  liable  for  necessaries 
furnished  to  him  in  London,  and  the  father  is  not  chargeable,  (w)  So,  where 
the  father  of  a  bastard  child  having  adopted  it  as  his  own,  though  no  order  of 
bastardy  has  been  made  on  him,  is  liable  for  necessaries  furnished  the  child,  (or) 

So,  an  action  will  lie  for  meat  and  drink  found  and  provided  for  a  bastard 
child  upon  an  express  promise,  (y)  And  so,  in  an  action  of  assumpsit  on  an 
express  promise  to  pay  for  the  maintenance  of  a  bastard  child,  of  which  the 
defendant  was  the  putative  father,  it  is  no  defence  that  he  has  since  discovered 
that  the  child  was  not  his  child,  (z) 


(v)  Per  Lord   Eldon  Ch.  J.    3  Esp.  Rep.         (y)  Per  Pemberlon,  Cb.  J.  2  Sho.  184. 
252.  (:)  Shaw   v.  Wliiteman,  Peakc's   Cas.  N. 

(w)  Crantz  v.  Gill,  2  Esp.  Rep.  471.  P.  29. 

(»)  Hesketh  v.  Gowing,  5  Esp  Rep.  131. 
•633 


AN 


INDEX 


OF    THE 


PRINCIPAL.  MATTERS, 


ACCOUNT  STATED. 

Action  lies  for  balance  due  upon  an  account  stated,  417. 
by  one  copartner  against  his  companion,  lb. 
what  is  evidence  of  an  account  stated,  41S. 
ACTION  UPON  CONTRACTS  AND  PROMISES, 

within  what  time  to  be  commenced,  68. 
ADMINISTRATOR.     See  Executor, 

AGENT.  See  Principal,  Factor,  Broker  and  Agent ;  and  Money  Had  and  Received. 
AGREEMENT.     See  Contract. 
ANNUITIES, 

in  what  cases  the  purchase-money  may  be  recovered  back  when  an  annuity  is  set 
aside,  or  avoided,  328. 
APPRENTICE, 

the  master  of,  entitled  to  his  earnings,  for  services  performed  for  another,  527. 

liable  for  necessaries  furnished  his  apprentice,  533. 

ARBITRATOR, 

no  action  lies  for  business  done  as  such,  255. 
ATTORNIES, 

when  entitled  to  sue  for  the  recovery  of  their  bills  of  costs,  247. 

liable  to  an  action  for  negligence  :    but  negligence  is  no  defence  to  an  action   fur 
costs,  253. 
AUCTION, 

of  sales  by  public  auction,  132. 

employing  puffers  avoids  a  sale,  lb. 

a  bidder  may  retract  his  bidding  before  the  hammer  is  down,  &c,  lb. 
AUCTIONEER, 

an  agent  for  buyer  and  seller,  99. 
but  his  clerk  is  not,  103. 

a  stake-holder  of  the  deposit  for  both  parties  till  the  sale  is  complete,  272. 

may  sue  in  his  own  name  for  the  price  of  goods  sold,  135. 

liable  to  an  action  for  the  deposit  without  interest,  if  the  title  be  defective,  &.c,  272. 

liable  for  deposit  and  expences  if  he  does  not  disclose  his  principal,  I 


636  INDEX. 

AUCTIONEER,  {continued.) 

not  liable  to  an  action  by  his  employer  for  selling  at  the  highest  bidding  though  con- 
trary to  private  instructions,  547. 
liable  to  an  action  for  selling  the  fixtures  in  a  house  after  notice,  lb. 
must  declare  specially  in  an  action  against  his  principal  for  payment  of  deposit  and 

costs  to  a  purchaser,  lb. 
cannot  recover  against  his  principal  the  amount  of  auction  duty  paid  in  consequence 
of  his  own  neglect,  lb. 


B. 

BAIL, 

money  paid  by  bail  for  his  principal,  398. 
BANKRUPT, 

a  promise  to  pay  a  debt  barred  by  his  certificate,  19. 

of  a  promise  by  a  bankrupt  or  his  friend  when  void,  54.  66. 

money  paid  by  a  friend  to  sign  a  certificate,  &c.  when  recoverable  back,  3  63. 
BARGAIN  AND  SALE  OF  GOODS  WITHOUT  DELIVERY,  131. 
BASTARD  CHILDREN, 

who  liable  for  necessaries  found  for,  638. 
BILLS  OF  LADING, 

sale  oi  goods  by  transfer  and  indorsement  of,  160. 

in  whom  the  property  of  goods  is  vested,  lb. 
BRICKS, 

sale  of  under  the  statutable  size,  void,  66. 
BROKER.     See  Principal,  Factor,  Broker  and  Agent. 
BUILDER.     See  Carpenter  and  Builder. 


(CARPENTER.     See  Services  and  Works.) 

where  work  is  done  under  a  special  contract  and  for  a  fixed  price,  any  deviation  or 

extra  work  does  not  avoid  the  contract,  236. 
in  an  action  for  work  and  labour  and  materials,  the  employer  may  shew  the  badneda 

thereof  so  as  to  reduce  the  quantum  of  price,  &c,  239. 
CARRIERS, 

who  are  deemed  common  carriers,  and  their  liability  for  the  loss  of  goods,  568. 
By  land, 

how  far  deemed  in  the  nature  of  insurers  against  fire,  robbery,  &c.  569,  &c. 

bound  to  deliver  goods  to  the  premises  of  the  consignee,  5S0. 

what  shall  be  deemed  a  delivery  and  acceptance  of  goods  by  a  carrier,  lb. 

of  notices  by  carriers  limiting  or  exempting  themselves  from  the  general  law  liability, 

573. 
in  what  cases  liable,  notwithstanding  such  notices,  either  by  accepting  the  goods  with. 

out  knowledge  of  their  value,  or  in  consequence  of  gross  negligence,  &c,  577,  8. 
by  whom  the  action  must  be  brought,  in  case  of  loss  or  damage  of  goods,  582. 
general  lien  upon  goods,  584. 
By  water, 
liable  for  loss  of  goods,  585. 
of  their  exemption  in  particular  cases- by  reason  of  the  exception  in  a  bill  of  lading,  and 

by  acts  of  parliament,  537.  to  591. 
CLERGYMAN.     See  Services  and  Works. 


INDEX.  637 

COHABITATION, 

agreements  for  future  cohabitation  void :  but  not  a  promise  by  way  of  reparation  for 
past  seduction,  55. 
COMMISSIONERS  TO  EXAMINE  WITNESSES.     See  Services  arid  works. 
CONCEALMENT, 

of  material  circumstances  vitiates  a  contrac  c  if  done  fraudulently,  59. 
CONSIDERATION, 

various  kinds  of,  to  support  a  pomise,  7. 
CONSTRUCTION  OF  CONTRACTS,  23. 
CONTRABAND  GOODS.  See  Smuggling. 
CONTRACTS  AND  PROMISES, 

of  the  nature  and  parts  of  a  contract  and  promise,  I. 

parties  to,  6. 

express  and  inplied  contracts  and  promises,  3. 

must  be  made  upon  a  good  consideration,  7. 

ought  to  be  obligatory  on  both  parties,  2. 

of  the  construction  of,  23. 

a  penalty  or  stipulated  damages,  23. 

cancelling  and  rescinding  a  contract,  38. 

performance  of,  40. 

stamping  of,  44. 

illegal  at  common  law,  63. 

by  the  statute  law,  59. 

limitation  of  actions  upon,  68. 
CONTRIBUTION, 

between  cosureties,  401. 

to  party  walls.     See  Party  Walls. 
COUNSEL, 

can  maintain  no  action  for  fees,  247. 
not  liable  to  an  action  for  return  of  fees,  &c,  233. 
CREDIT, 

on  sale  of  goods,  179. 


D. 

DAMAGES.  I  See  Penalty  and  Stipulated  Damages. 
DEBTOR  AND  CREDITOR, 

if  upon  a  composition  a  creditor  obtains  more  money  from  his  debtor  than  the  amount 
of  the  composition  he  is  liable  to  refund  it,  368. 
DECEIT, 

obtaining  goods  upon  pretence  of  a  sale,  &.C.,  116,  168. 
DEL  CREDERE  COMMISSION.     See  Principal  and  Factor. 
DEPOSIT  MONEY.     See  Sales,  <$-c.  Money  Had  and  Received. 
DISTRESS  FOR  RENT, 

if  upon  a  distress  and  seizure  of  the  goods  of  a  tenant,  a  parol  promise  by  a  third  per- 
son is  made  to  pay  the  arrears  on  giving  up  the  goods,  it  is  valid  and  need  not  to 
be  in  writing,  221. 
DRUGS, 

sale  of  prohibited  drugs  to  a  brewer  void,  65. 


E. 
EARNEST.    See  Sales. 


638  INDEX- 

EAST  INDIA  COMPANY, 

their  sales,  &c,  135. 

ship, 
sale  of  the  command  of,  void,  451. 
EAST  INDIES, 

trading  to,  by  private  persons,  65. 
ELECTION, 

treating  at  an  election,  and  contracts  made  thereon,  void,  66. 

providing  hustings  or  booths,  &c.  at  whose  expence,  260. 
ENEMY, 

trading  with  an  enemy,  without  the  king's  licence,  void,  57. 
EXECUTION, 

a  verbal  promise  by  a  third  person  to  pay  a  debt,  in  consideration  of  giving  up  goods 
seized  on  execution,  valid,  221. 
EXECUTOR  AND  ADMINISTRATOR, 

a  verbal  promise  by,  to  pay  the  debt  of  the  testator  or  intestate,  void,  8. 


F. 

FACTOR.     See  Principal  and  Factor. 
FAIRS, 

sale  of  goods  in,  166. 
FATHER  AND  SON, 

a  father  is  liable  for  necessaries  furnished  to  his  son,  629. 
but  not  liable  whilst  the  son  is  living  from  his  father,  if  the  latter  makes  a  proper 

allowance  to  his  son,  633. 
not  liable  to  provide  for  his  wife's  children  by    a  former  marriage,  but  they  are 

liable  to  him,  630. 
he  is,  however,  liable  to  tradesmen  supplying  them  with  necessaries  whilst  living 

with  him,  632. 
if  a  son,  under  a  general  authority  from  his  father,  receives  money  from  a  debtor, 

the  latter  is  discharged  though  the  son  misapplies  the  money,  550. 
if  a  trader,  upon  a  misrepresentation  by  a  father  respecting  his  son,  an  infant,  is 
induced  to  trust  the  son  with  goods,  and  they  afterwards  come  to  the  use  of  the 
father,  he  is  liable  for  the  amount  to  the  trader,  169. 
FEME  COVERT.     See  Married  Women. 

sole  trader  in  London  liable  to  be  sued  as  a  feme  sole  in  the  city  courts,  599. 
FORBEARANCE  TO  SUE, 

a  promise  to  pay  a  debt  of  a  third  person,  in  consideration  of  forbearance  not  to  sue 
&c.  must  be  in  writing,  190. 
FORESTALLING,  ILLEGAL,  65. 
FRAUD, 

contracts  infected  with  fraud  are  void,  58. 
deceitfully  obtaining  goods  under  a  pretenoe  of  sale,  &c,  175. 
fraudulent  representations  or  concealment,  59. 
FRAUDS,  STATUTE  OF, 

Relating  to  the  sale  of  goods  for  the  price  of  10J.  and  upwards,  the  buyer  must  either 
accept  part,  or  give  something  in  earnest,  or  sign  a  note  in  writing  by  the  party  or 
his  agent,  82. 

public  stock,  &c.  not  goods,  84. 

executory  and  executed  contracts  within  the  statute,  82. 

goods  in  esse,  and  in  a  fit  state  of  immediate  delivery,  at  the  time  of  sale,   within 
the  statute,  but  otherwise  not,  83. 


INDEX.  639 

FRAUDS,  STATUTE  OF,  (continued.) 

a  contract  for  several  distinct   articles  amounting   to   10/.  is  within  the  statute, 

86. 
an    actual  delivery  not  necessary  where  the  goods   bought  are  ponderous,  or  in  a 

public  warehouse,  &c,  87. 
but  there  must  be  either  an  actual  or  symbolical  delivery,  and  an  acceptance  affirm- 
ing the  contract,  so  as  to  make  a  change  in  the  property,  &c,  lb.  91. 
If  an  absolute  contract  be  made  for  one  article,  and  a  conditional  contract  for  an- 
other, at  one  and  the  same  time,  they  are  two  contracts,  and  an  acceptance  of 
the  first  article  will  not  assist  the  second  contract,  so  as  to  prevent  the  operation 
of  the  statute,  9r. 
a  parol  dispensation  of  the  terms  of  delivery  does  not  avoid  the  contract,  92. 
a  delivery  of  goods  to  a  carrier  sufficient,  lb. 
what  shall  be  a  sufficient  delivery  upon  a  sale  by  sample,  94. 
what  is  a  sufficient  payment  of  part  of  the  price,  or  of  giving  something  by  way  of 

earnest,  95. 
the  note  in  writing  need  not  be  in  any  particular  form  of  words,  lb. 
the  agent  need  not  be  authorised  in  writing,  98. 

he  must  be  unconnected  in  interest  with  the  contract ;  therefore  a  buyer  and 

seller  cannot  act  as  agent  for  each  other,  lb. 
a  broker  or  auctioneer  employed  to  sell  is  deemed  agent  for  both  parties,  99. 
but  an  auctioneer's  clerk  is  not,  103. 
of  a  broker's  bought  and  sold  note,  lb. 
Relating  to  promises  by  an  executor  or  administrator. 
a  promise  by  an  executor  to  pay  the  debt  of  his  testator,  unless  in  writing,  will  not 
charge  him  personally,  8. 
Relating  to  promises  to  be  answerable  for  the  debt,  default  or  miscarriage  of  another. 
A  promise  to  be  in  any  manner  answerable  for  the  debt  or  default  of  another  must 
be  reduced  into  writing  and  signed,  and  the  consideration  stated,  190,  200,  207. 
So,  for  money  or  goods  supplied  to  another,  192. 

where  the  party  promising  is  in  any  manner,  liable  to  the  original  debt,  &c.  the  stat- 
ute does  not  apply,  195. 
nor  where  the  consideration  for  the  promise  is  made  to  the  party  promising, 
196. 
Relating  to  an  agreement  not  to  be  performed  within  a  year,  231. 
Relating  to  promises  to  pay  money  in  consideration  of  marriage,  456. 


G. 

GAMBLING  CONTRACTS, 

made  under  colour  of  sale  of  goods,  void,  58. 

GAMING, 

contracts  and  promises  for  money  won  at  play,  and  all  securities,  void,  61. 
but  money  lent  to  play  with  or  to  pay  a  gaming  debt  is  legal,  385. 

GAOLER.    See  Money  Had  and  Received. 

GOODS.    See  Sales. 

GUARANTEE  OR  PROMISE  TO  BE  ANSWERABLE  FOR  THE  DEBT,&c.  OF 

ANOTHER. 

of  the  general  nature  of  a  guarantee,  1 90. 
statute  of  frauds  relating  thereto,  lb. 
of  the  construction  of  a  guarantee,  207. 

what  amounts  to  an  unaccepted  guarantee,  lb. 
78 


640  INDEX. 

GUARANTEE,  {continued.) 

when  it  Bhall  extend  to  a  past,  present,  or  future  debt,  or  supply  of  goods,  &c.  209. 

when  given  for  the  benefit  of  a  country  bank,  to  holders  of  notes,  lb. 

when  a  continuing  guarantee,  210. 
of  a  guarantee  given  to  a  partnership  firm  and  its  duration,  212. 
of  the  effect  of  a  recital  in  a  guarantee,  210. 
of  promises  to  be  answerable  for  the  debt  or  default  of  another,  in  consideration 

of  forbearance  to  sue,  or  of  discharging  the  debtor,  or  of  giving  up  securities,  &c. 

when  valid,  213. 

to  pay  a  precedent  debt,  &c.  in  consideration  of  proving  it  due  upon  oath  or  of  fail- 
ing to  prove  it  paid,  &c.  220. 

to  pay  a  debt  on  delivering  up  goods  distrained  for  rent,  or  taken  in  execution,  &c. 
221. 
of  agreements  made  with  sheriff's  officers,  gaolers,  &c.  to  put  in  bail  for,  or  pay  th« 

debt,  &c.  of  another,  223. 
what  shall  amount  to  a  discharge  of  a  guarantee, 

by  extending  the  time  of  credit,  or  taking  fresh  securities,  224. 

by  not  complying  with  the  terms  of  it,  225. 
fraudulent  concealment  of  facts,  226. 

of  laches  in  not  giving  notice  of  the  default  of  the  principal,  &c.  lb. 

by  bankruptcy,  lb. 
of  payments  made  by  the  principal  whilst  a  guarantee  is  continuing,  and  of  the  appli- 
cation of  such  payments,  227. 
of  notice  to  a  surety  of  the  default  of  the  principal,  229. 


H. 

HUSBAND  AND  WIFE, 

All  the  personal  property  of  the  wife  at  the  time  of  marriage  ia  vested  in  the  husband, 
596. 
so,  debts  owing  to  her,  or  other  choses  in  action  when  reduced  into  possession  by 

action,  but  not  otherwise  :  for  upon  his  death  they  survive  to  the  wife,  597. 
so,  he  is  entitled  to  his  wife's  earnings,  lb. 

if  her  real  estate  be  in  trust,  the  trustee  alone,  and  not  the  husband,  can  sue  for 

rents  wrongfully  received,  lb. 

All  contracts  made  by  the  wife  after  marriage,  charging  herself  or  her  husband,  void ; 

except  such  as  are  made  by  her  under  his  authority,  and  as  his  agent,  in  which 

case  the  husband  alone  is  liable,  59S. 

a  promissory  note  or  bill  of  exchange,  drawn,  accepted,  or  indorsed  by  a  married 

woman  void,  598. 
but  a  contract  made  with  the  wife  during  marriage,  which  is  for  her  benefit,  may  ba 

enforced  by  the  husband  against  the  person  making  such  contract,  616. 
if  the  wife  carries  on  business  within  the  city  of  London  as  a  feme  sole  trader  she  ia 
liable,  by  custom,  to  be  sued  in  the  city  courts  as  a.  feme  sole  for  debts,  &c.  contract- 
ed by  her,  599. 
the  husband  is  liable  to  be  sued  jointly  with  his  wife  for  all  debts  contracted  by  her 
before  marriage  ;  but  if  not  sued  for  during  her  life,  he  is  discharged  from  all  liabil- 
ity at  her  death,  597. 

he  is  also  liable  for  necessaries  supplied  by  her  orders,  whilst  they  live  toge- 
ther, 602. 
whilst  living  in  a  state  of  separation, 

if  the  husband  either  leaves  his  wife,  or,  by  ill  treatment,  compels  her  to  quit 
his  house,  or  if  he  turn  her  out  of  his  house,  he  is  liable  for  nectaries  iup- 


INDEX. 


641 


HUSBAND  AND  WIFE,  {continued.) 

plied  to  her  during  such  separation,  602. 
but  they  must  be  such  necessaries  as  are  suitable  to  his  condition  and  circum- 
stances in  life,  607. 
but  if  she  departs  from  her  husband  voluntarily,  and  without  cause,  and  con- 
trary to  his  will,  and  he  warns  persons  not  to  trust  her,  he  will  not  be  lia- 
ble, lb. 
if,  however,  she  returns  to  her  husband,  and  he  refuses  to  receive  her,  he  is  lia- 
ble for  necessaries  furnished  her  after  such  refusal,  C03,  608. 
so,  if  he  has  once  paid  for  necessaries  whilst  living  apart,  he  continues  liable 

until  express  notice  be  given  not  to  trust  her,  &c.  608. 
If  they  separate  by  mutual  consent  and  agreement,  or  by  deed  of  separation, 
and  the  wife  has  a  separate  maintenance  secured  and  regularly  paid  to  her, 
the  husband  is  not  liable,  610. 
■o,  if  they  are  separated  o  mensa  et  thoro  by  sentence,  615. 
so,  if  she  elopes  from  her  husband  and  lives  in  a  state  of  adultery,  6he  thereby 
forfeits  all  claim  to  maintenance,  and  the  husband  is  wholly  discharged,  even 
though  she  is  willing  to  return,  &c.  613. 
the  wife  is  liable  to  be  sued  as  a.  feme  sole  upon  contracts  made  by  her,  where 
her  husband  has  abjured  the  realm,  and  is  living  in  exile,  &c.  599. 
but  a  mere  temporary  absence  not  sufficient  to  charge  her,  602. 
money  lent  to  the  wife  at  the  request  of  the  husband,  is  money  lent  to  him, 
and  should  be  so  stated  in  pleading,  606. 
the  husband  is  liable  for  the  expences  of  the  funeral  of  his  wife  during  his  ab- 
sence, lb. 
how  husband  and  wife  must  sue  and  be  sued,  616. 

if  a  man  and  woman  live  together,  and  pass  as  husband  and  wife,  though  unmarried, 
the  man  is  liable  for  contracts  entered  into  by  her,  in  the  same  manner  as  if  they  had 
been  actually  married,  615. 


I. 

ILLEGAL  CONTRACTS  AND  PROMISES, 

void  at  common  law,  53. 

by  statute  law,  59. 

in  what  cases  money  paid  upon  an  illegal  contract  may  bo  recovered  back.     Sea  .Mo- 
ney Hod  and  Received. 
IMPLIED  CONTRACTS  AND  PROMISES,  4. 

INFANT, 

all  contracts  with  an  infant,  except  for  necessaries,  voidable,  618. 

not  liable  for  goods  supplied  or  work,  done,  though  a  trader,  if  under  age,  lb. 

not  liable  as  an  innkeeper  upon  the  custom  of  the  realm,  619. 

drawing,  accepting,  and  indorsing  a  bill  of  exchange  by,  void ;  but  all  adult  parties 

thereon,  as  upon  all  other  contracts,  are  liable,  lb. 
the  contract  of  an  infant  cannot  be  converted  into  a  tori,  so  as  to  make  him  liable 
thereon,  lb. 

but  he  is  liable  for  money  wrongfully  received,  620. 
and  in  detinue  for  the  detention  of  goods,  lb. 
liable  for  necessaries  furnished  suitable  to  his  estate  and  condition  in  life,  623. 

regimentals  for  a  member  of  a  volunteer  corps,  and  a  livery  for  the  servant  of 
a  captain,  deemed  necessaries,  624. 
but  not  cockades  for  his  soldiers,  lb. 
if  maintained  by  his  parent  he  will  not  bo  liable  ;  and   if  h«  lives  apart  from 


642  INDEX. 

INFANT,  (continued.) 

them,  and  is  allowed  a  reasonable  maintenance,  the  parent  is  not  liable,  625. 
liable  for  board  and  education,  unless  placed  out  by  his  parent  or  guardian, 

624. 
for  a  fine  on  admittance  to  a  copyhold  estate,  626. 
of  his  liability  upon  a  single  bill  for  necessaries,  &c,  lb. 

but  not  upon  a  bond  with  a  penalty,  nor  upon  an  account  stated,  &c,  626, 
627. 
liable  upon  a  contract  made  abroad,  unless  it  be  shown  that  by  the  foreign  law  he  is 

not  liable,  627. 
if,  after  coming  of  age,  he  voluntarily  makes  an  absolute  or  conditional  promise  to  pay 
a  debt  contracted  during  infancy,  he  is  liable,  62S. 

INFORMATION, 

no  action  will  lie  for  giving  information  leading  to  the  discovery  of  property,  &c, 
262. 

INSIMUL  COMPUT ASSENT.    See  Account  stated. 

INTEREST, 

on  what  debts  and  contracts  interest  is  recoverable,  420. 


L. 

LANDLORD  AND  TENANT, 

of  the  landlord's  right  to  recover  rent  upon  an  execution,  353. 

LETTERS.    See  Stamps. 

LIEN, 

of  the  vendor's  right  of  lien  upon  the  sale  of  goods,  152. 

LIMITATION  OF  ACTION,  STATUTE  OF, 

within  what  time  an  action  must  be  brought  upon  a  contract  or  promise,  68. 

where  the  parties  are  abroad  at  the  time  of  the  contract,  72. 

what  acknowledgment  or  promise  is  sufficient  to  take  it  out  of  the  statute,  69. 

to  what  persons  the  statute  does  not  extend,  72. 

statute  does  not  take  effect  till  the  cause  of  action  is  complete,  lb. 

LiaUORS, 

sale  of,  when  void,  67. 
LOTTERY.     See  Money  Had  and  Received. 

contracts  for  the  sale  of  tickets  or  shares  in  private  lotteries,  void,  63. 


M. 

MAINTENANCE, 

of  suits,  illegal,  63. 

MARKET  OVERT, 
sales  in,  166. 

MARRIAGE, 

restraint  of,  void,  455. 

action  lies  for  breach  of  promise  of  marriage,  453. 

marriage  brokage  contracts  void,  56. 

of  promises  to  pay  money  in  consideration  of  marriage,  456. 

MARRIED  WOMEN.    See  Husband  and  Wife. 
MARRY,  CONTRACTS  TO,  453. 


INDEX.  643 

MASTER  AND  SERVANT, 

master,  liable  upon  contracts  made  by  his  servant  under  his  authority,  521. 

so,  upon  bills  of  exchange  or  promissory  notes,  drawn,  accepted,  or  indorsed 

by  the  servant,  by  his  master's  authority,  lb. 
if  a  servant  take  in  payment  of  a  debt,  a  bill  instead  of  money,  the  master  is 

not  bound  by  it,  526. 
the  master  gives  notice  not  to  trust  his  servants,  or  if  he  deals  in  general  for 

ready  money,  and  the  tradesmen  give  credit,  the  master  is  not  answerable, 

523. 
a  master  may  maintain  an  action  for  the  earnings  of  his  apprentice  ;  but  it  is  doubt- 
ful whether  he  can  maintain  such  an  action  for  the  earnings  of  an  hired  servant 
who  has  been  seduced  from  his  service,  &c,  527. 

servant  liable  to  an  action,  at  the  suit  of  his  master,  for  negligence,  528. 
wages, 
action  for,  529. 
a  servant  at  a  particular  fixed  salary,  is  not  entitled  to  any  increase  for  extra  duty, 

&c,  lb. 
slave  coming  into  England,  and  serving  his  master,  not  entitled  to  wages,  lb. 
contract  to  pay  a  certain  sum  per  annum  for  services  to  be  performed,  is  an  entire 
contract,  and  no  action  lies  till  the  end  of  the  year,  lb. 

but  in  the  case  of  domestic  servants,  the  general  custom,  sanctioned  by  law, 
is,  to  pay  a  servant  for  the  period  of  time  he  actually  serves  his  master,  and 
such  service  may  be  dissolved  by  a  month's  notice,  530. 
and  if  a  master  turns  away  his  domestic  servant  without  a  month's  warning, 
he  is  liable  to  pay  a  month's  wages,  unless  by  the  servant's  misconduct  he  is 
justified  in  turning  him  away,  lb. 
as  to  a  master's  liability  to  provide  medicines,  &c.   for  his  servant  during  sickness, 
531. 
and  necessaries  for  an  apprentice,  533. 

MISTAKE.     See  Money  Had  and  Received. 

MONEY  HAD  AND  RECEIVED, 
action  of  indebitatus  assumpsit, 

general  nature  and  advantages  of  this  form  of  action,  and  when  it  lies,  £67. 
in  what  cases  money  received,  belonging  to,  and  which  ought  to  be  paid  ovor 
to  another,  or  to  be  applied  to  a  particular  purpose,  may  be  recovered  from 
the  receiver  in  this  form  of  action,  269. 
lies  for  money,  or  for  goods,  &c.  converted  into  money,  275. 

money  received  by  bankers  or  others,  upon  or  in  respect  of  bills  of  ex- 
change, promissory  notes,  and  other  securities,  282. 
money  received  on  post-dated  checks,  bills,  &c,  or  with  fictitious  or  forged 

names  thereon,  290. 
money  due  from     one  person  to  another  which  is  directed  and  appro- 
priated to  be  paid  to  a  third  person,  278. 
money  deposited  with  a  stakeholder,  221. 
money  received  by,  or  from  agents,  servants,  and  others,  acting  for  their 

principals,  297. 
money  received  upon  contracts  which  have  been  rescinded  or  not  performed, 
viz. 

upon  the  sale  of  lands  or  houses,  304. 

cattle  or  goods,  319. 

■  annuities,  328. 

upon  a  contract  for  some  particular  act  to  be  done,  or  benefit  to  be  derived, 
but  which  has  failed,  322. 


644  INDEX. 

MONEY  HAD  AND  RECEIVED,  (continued.) 

but  this  form  of  action  will  not  lie  whilst  the  contract  remains  open,  or  not 

put  an  end  to,  804. 
trust  money,  301. 
the  produce    of  an  adventure    in  the  southern   whale  fishery  between  a 

captain  and  his  crew,  302. 
money  paid  and  received  under  a  mistake,  and  in  ignorance  of  the  law  and 

fact,  335. 
premiums  of  insurance,  and  in  what  cases  recoverable  back,  334. 
does  not  lie  to  recover  back  money  voluntarily  paid,  by  a  party,  who  either 
has  full  knowledge  of  all  the  circumstances,  or  having  the  means  of  know- 
ledge, neglects  making  a  due  enquiry,  &c,  338. 
in  what  cases  it  lies  to  recover  back  money  received, 

upon  compulsory    payments,  made  upon  a  pledge  of   goods, 

339. 
for  an  excessive  fine  upon  admittance,  340. 
under  legal  process,  341. 

a  threat  of  action,  or  distress,  &c.  345. 

colour  of  process,  or  by  excess  of  authority,  346. 

mala  fide,  and  obtained  by  deceit,  misrepresentation,  or  other 

fraudulent  means,  348. 
under  a  void  authority,  judicial  or  otherwise,  347. 
money  wrongfully  received  by  a  creditor  from  a  bankrupt  or  in- 
solvent, or  his  friends,  by  means  of  undue  advantage  or  op- 
pression, and  in  fraud  of  other  creditors,   368. 
in  what  cases  money  received  by  or  from  sheriffs,  bailiffs,  gaolers,  or 

their  deputies,  may  be  recovered  back,  351. 
money  received  by  a  receiver-general  of  a  county,  or  by  revenue  or 

other  public  officers,  either  by  mistake  or  mala  fide,  356. 
excess  of  toll  received  by  toll-gate  keepers,  359. 
action  of  indebitatus  assumpsit, 

for  money  received  by  parish  officers  for  the  maintenance  of  bastard   children, 

360. 
in  what  cases  it  lies  in  respect  of  fees  or  accustomed  dues  received  and  claimed 
in  right  of  a  public  office,  377. 
or  for  shares  of  prize-money  received,  380. 
money  received  upon  illegal  contracts, 

1st.  between  persons  in  pari  delicto,  361 . 

2d. not  in  pari  delicto,  lb. 

for  excess  of  interest,  365. 
upon  illegal  wagers,  371. 
insurances,  374. 

MONEY  LENT  AND  ADVANCED, 

action  of  indebitatus  assumpsit  lies  for  money  lent  by  one  person  to  another,  382 . 
or  where  it  is  lent  to  a  third  person  at  the  request  of  another,  lb. 

on  a  pledge,  383. 

■ to  game  with,  or  to  pay  a  gaming  debt,  385. 

a   loan    of  stock  in  the  public  funds    not  recoverable  in  this   form  of  action  f 

384. 
money  lent  to  pay  on  account  of  illegal  stock -jobbing  transactions  not  recovera- 
ble, 388. 


INDEX.  645 

MONEY  PAID, 

action  of  indebitatus  assumpsit  for  money  paid,  laid  out,  and  expended  for  another,  at 

his  request,  390. 
of  voluntary  payments,  392. 
if  goods  of  a  stranger  are  distrained  for  arrears  of  rent,  and  he  pays  the  arrears, 

in  order  to  redeem  his  goods,  he  may  maintain  this  form  of  action  against  the 

tenant,  393. 
by  a  tenant  against  his  landlord  for  landlord's  taxes  paid  by  him,  lb. 
for  money  paid  upon  an  accommodation  acceptance,  or  other  securities,  &c, 

395. 

or  for  the  amount  of  a  bill  paid  for  the  honor  of  the  drawer,  393. 
of  money  paid  by  a  surety  for  his  principal,  lb. 
of  contribution  between  sureties,  401. 
the  members  of  a  club,  404. 


towards  building  a  party-wall,  lb. 
between  co-tort  feasors,  403. 


of  money  paid  by  sheriffs  or  their  officers,  415. 

no  action  lies  to  recover  back  money  paid  in  consequence  of  neglect  of  duly, 
lb. 


N. 

NECESSARIES.    See  Husband  and  Wife.  —  Infants. 

NUDUM  PACTUM, 

a  promise  made  without  consideration  is  void,  as  being  nudum  pactum,  8. 

O. 

OFFICE, 

in  what  cases  the  right  to  an  office,  and  of  taking  fees  in  respect  thereof,  may  be  tried 

in  an  action  of  assumpsit,  377. 
sale  or  relinquishment  of  an  office,  in  what  cases  void,  443. 

the  command  of  an  East  India  ship  void,  451. 

a  promise  to  pay  money  in  consideration  of  procuring  a  donative,  void,  lb. 
■ — ■   a    place  in  a  public  office,  45. 

on  a  promise  to  pay  a  sum  of  money  to  desist  in  the  application  for  the  office  of  un- 
der-'sheriff,  452. 
OVERSEERS  OF  THE  POOR, 

liable  to  a  surgeon  for  his  attendance  of  a  pauper,  245. 

OWNERS  AND  PART-OWNERS  OF  A  SHIP.    See  Carriers. 


P. 

PARDON, 

money  deposited  for  soliciting  a  pardon  not  recoverable,  262. 

PARENT  AND  CHILD, 

liability  for  necessaries.    See  Infants. 

PARISH  OFFICERS, 

of  money  received  by  them  for  the  maintenance  of  bastard  children,  360. 


646  INDEX. 

PARTNERS, 

of  the  general  definition  of  a  partnership,  and  who  shall  be  deemed  a  partner,  and 
what  will  constitute  a  partnership,  463. 

of  the  division  of  profits  and  loss,  465. 
participation  of  profits  for  services,  &c,  472. 
sub-division  of  profits,  474. 
secret  and  dormant  partners,  470. 
infant  partners,  482. 
executors,  lb. 
what  acts  will  make  a  person  liable  as  a  partner,  though  he  neither  receives  profit 

or  participates  in  losses,  431. 
of  a  partnership  in  a  particular  concern,  474. 
of  unincorporated  societies,  473. 
between  stage-coach  proprietors,  480. 
in  what  cases  a  dormant  partner  shall  not  set  up  a  partnership  so  as  to  defeat  an 
action  brought  against  one  holding  himself  out  as  the  sole  trader,  515. 
if  one  of  several  partners  enter  into  a  contract,  or  make  a  warranty  upon  a  sale,  &c. 
in  the  name  of  the  firm,  all  are  liable  to  a  bona  fide  creditor  who  trusts  the  firm, 
433. 
of  a  guarantee  entered  into  by  one  partner  in  the  name  of  the  firm,  4S4. 
of  the  drawing,  accepting,  and  indorsing  of  bills  of  exchange  on  joint  or  separate  ac- 
count, 488. 
executing  deeds,  and  releasing  debts,  503. 

of  money  borrowed  by  one  of  several  partners  for  travelling  expences,  500. 
of  the  misapplication  of  money  received  by  one  of  several  partners  on  the  partner- 
ship account,  501. 
of  trust  money  misapplied,  and  used  in  the  concern,  502. 
all  the  partners  are  liable  for  a  misrepresentation  made  by  one  of  them  in  the  sale, 

&c.  of  goods,  503. 
of  smuggling  transactions,  lb. 

one  partner  cannot  bind  his  copartner  by  deed,  &c,  lb. 
of  a  change  or  dissolution  of  partnership,  505. 
of  the  payment  of  partnership  debts  after  a  dissolution,  and  of  the  application  of 

such  payments,  507,  509. 
all  the  members  of  a  firm  must  sue  or  be  sued  for  a  joint  debt  who   were  in  part- 
nership at  the  time  it  was  contracted,  if  living,  515. 
how  to  sue  or  be  sued  in  cases  of  bankruptcy  or  death,  516. 
of  the  right  of  set-offof  mutual  debts,  517. 
of  contracts  and  promises  between  parties  inter  se,  51S. 
PARTY  WALLS, 

when  an  action  lies  for  contribution  for  rebuilding  a  party  wall,  404. 
PAYMENT, 

on  sales  of  goods,  &c,  182. 

of  the  application  of  payments  on  guarantees,  227. 

. by  partners,  507. 

PENALTY  OR  STIPULATED  DAMAGES, 

distinction  between  a  penalty  and  stipulated  damages,  28. 
election  to  proceed  for  the  penalty  or  general  damages,  37. 
a  party  cannot  recover  beyond  the  penalty,  38. 

be  let  off  from  a  specific  performance  of  a  contract  by  payment, 

or  tendering  the  penalty,  lb. 
PERFORMANCE  OF  A  CONTRACT,  40. 


INDEX.  647 

PERFORMERS.    See  Services  and  Works. 
PHYSICIANS.    See  Services  and  Works. 

PLEDGE  OF  GOODS,  &c. 

of  exorbitant  interest  taken  upon  a  pledge,  and  when  it  is  recoverable  back,  330. 
PREMIUMS  OF  INSURANCE, 

in  what  cases  recoverable  back  from  the  underwriters,  in  an  action  for  money  had 
and  received,  334. 

PRINCIPAL,  FACTOR,  BROKER,  AND  AGENT, 

difference  between  &  factor  and  broker,  535. 

general  duty  of  a  factor  and  agent,  536. 

of  the  business  and  employment  of  a  broker,  537. 

appointment  of  an  agent,  and  his  general  or  limited  power,  &c,  533. 

factor,  broker,  and  agent  cannot  pledge,  for  their  private  debt,  the  goods  of  their 
principal,  539. 

cannot  delegate  their  authority,  and  in  whose  name  they  should  make  their  con- 
tracts, lb. 

cannot  sell  on  credit,  except  by  usage  of  the  place  of  sale,  &c,  538. 

if  they  become  bankrupt  their  assignees  cannot  take  the  goods  of  the  principal,  539. 
but  if  sold  and  converted  into  money,  it  pases  under  the  general  assignment,  540. 

the'power  of  an  agent  to  ,draw,  accept,  and  indorse  bills,  &c.  so  as  to  charge  his  prin- 
cipal, 541,  542. 

the  principal  liable  upon  contracts  made  by  a  factor,  broker,  or  agent,   541. 

payment  or  settlement  with  a  factor,  broker,  or  agent,  when  valid,  548. 

when  a  debt  due  from  a  factor  or  broker  may  be  set  off  in  an  action  brought  in  the 
name  of  the  principal,  551. 

when  the  taking  of  a  security  from  the  agent,  discharges  the  principal,  550. 

a  factor  or  agent,  acting  for  one  who  is  beyond  sea,  may  sue  and  be  sued  in  his  own 
name,  556. 

in  what  cases  a  factor,  broker,  or  agent,  may  be  personally  liable,  lb. 

not  liable  for  money  paid  to  him  by  mistake,  after  he  has  paid  it  over  to  his  prin- 
cipal, 555. 

but  the  mere  circumstance  of  passing  such  money  into  account  with  his  principal  is 
not  sufficient,  lb. 

if  an  agent  misapplies  money  paid  to  him  on  account  of   his  principal,  the   latter  is 
liable  to  be  sued  for  it,  545. 

money  paid  by  an  agent  on  account  of  his  principal  under  a  mistake  may  be  recover- 
ed back  by  cither,  299.  . 

of  a  factor's  liability  under  a  del  credere  commission,  546. 

broker's  liability   upon   an  indemnity  against  loss  upon   a  rc-salc  of  goods 

557. 

factors,  brokers,'  or  agents,  liable  to  an  action  for  not  accounting  and  paying  over 
balances  to  their  principals,  558. 
their  liability  for  not  insuring  goods,  &c,  lb. 

right  of  lien  on  goods,  560. 

to  commission,  &c,  561. 

goods  entrusted  to  an  agent  to  sell  in  India,  and  what  he  should   not  sell  to  bring 
back  to  England,  not  being  able  to  sell  th  m,  lie  left  them  with  another  for  sale,  he 
is  not  liable  to  an  action  of  trover,  560. 
-of  the  countermand   or    revocation  of  the  authority  of  a  factor,  broker,  or  agent, 
545. 

if  a  stock-broker  makes  time  bargains  for  his  principal,    and  pays  the  difference,  he 
cannot  recover  them  from  his  principal,  561. 

79 


648  INDEX- 

PRINCIPAL  AND  SURETY.     See  Guarantee  and  Monty  Paid. 

PRINTS, 

sale  of  immoral  and  libellous  prints  void,  178. 

PRINTERS.     See  Services  and  Works. 
PRIZE  MONEY,  Shares  of, 

in  what  cases  recoverable  by  action  of  indebitatus  assumpsit  for  money  had  and 
received,  380. 
PROCTORS.     See  Services  and  Works. 
PROCURING  MONEY,  &c.     See  Services  and  Works. 
PROMISES.     See  Contracts  and  Promises. 

PROSTITUTION.    See  Cohabitation. 

Work  done  for  a  prostitute,  such  as  making  dresses,  &.c.  is  not  illegal,  and  the  amount 
may  be  recovered  by  action,  55. 

PROVING  A  DEBT, 

a  promise  to  pay  a  debt  on  proof  of  its  existence  by  the  party  making  oath  of  it,  ii  a 
good  consideration,  220. 

R. 

RECEIVER  GENERAL  OF  THE  LAND  TAX, 

liable  to   action  for  money   received  under  an  assessment  of  a  jury  upon  a  case  of 
compensation,  356. 

RECOMMENDING  CUSTOMERS, 

a  promise  to  pay  money  for  recommending  customers,  void,  59. 

REGRATING  ILLEGAL,  65. 

RESCINDING  OF  A  CONTRACT, 

in  what  cases  a  contract  may  be  rescinded,  38. 

when  money  paid  upon  a  contract  which  is  rescinded  may  be  recovered  back.  See 
.Money  Had  and  Received. 
RESTRAINT  OF  TRADE.    See  Trade. 
REVENUE  OFFICERS.    See  Money  Had  and  Received. 


S. 

SALE  AND  EXCHANGE  OF  GOODS,  &c,  130. 
SALE  OR  RETURN  OF  GOODS,  &c,  129. 

SALES  OF  GOODS,  &c, 

of  the  general  rules  of  law  relating  to  the  sale  of  goods;  and   of  gambling  specula- 
tions, under  colour  of  sale,  78 

statute  of  frauds  relating  thereto,  81. 

of  sales  made  by  brokers,  and  of  their  bought  and  sold  notes,  103. 

absolute  and  conditional  sales,  and  of  particular  stipulations  annexed  to  contracts 

of  sale,  105. 
warranties  by  sample,  109. 
express  and  implied  warranties  upon  the  sale  of  goods  otherwise  than   by  sample, 

and  of  deceit  in  the  sale  of  goods,  116. 
♦he  warranty  of  the  soundness  of  cattle,   123. 
bv  public  auction,  132. 

of  the  allowance  of  duties  thereon,  &e.,  136= 


INDEX.  649 

SALES  OF  GOODS,  (continued.) 

of  sales  by  the  East  India  Company,  135. 

the  delivery  of  goods  upon  sales  to  the  vendee,  or  to  a  carrier  or  wharfinger,  &c, 
136. 

when  the  vendor  must  insure  goods  sent  by  a  carrier,  &c,  140. 

of  a  symbolical  delivery  by  giving  a  key  or  delivery  order,  Sue,  142. 

when  the  property  in  goods  sold  is  vested  in  the  buyer,  and  at  whose  risk  they  ara 
whilst  in  the  possession  either  of  the  seller,  or  at  a  public  or  private  wharf,  or  ware- 
house, 143. 

of  the  vendor's  lien  or  right  to  retain  the  goods  till  paid  for,  &c,  152. 

' right  to  stop  goods  sold,  in  transitu,  upon  the  event  of  the  vendee'e  in- 
solvency or  bankruptcy,  153. 

by  bill  of  lading,  160. 
when  the  property  passes  by  indorsement,  &c,  lb. 

in  market  overt  and  in  fairs,  &c,  166. 

obtained  by  fraud  and  deceit,  and  of  the  vendor's  right  to  follow  and  sei*e  them,  16$. 

of  the  sale  of  contraband  and  smuggled  goods,  175. 

obscene  and  libellous  prints,  &c,  178. 

excisable  goods  by  a  person  not  licensed,  lb. 

of  a  bargain  and  sale  without  delivery,  131 .  . 

of  a  sale  and  exchange  of  goods,  130.  y* 

■ . return  of  goods,  129. 

of  credit  upon  sales,  179. 
payment  for  goods  sold,  &c,  182. 

when  payment  may  be  resisted,  185. 

a  stipulated  price  may  be  reduced  to  a  quantum  valebant,  187. 

in  what  cases  money  received  on  contracts  for  the  sale  of  goods,  which  have  not  been 
performed,  &c.  may  be  recovered  back,  304. 

SCHOOLMASTERS.      See  Services  and  Works. 
SEDUCTION.      See  Cohabitation. 
SERVANT.     See  Master  and  Servant. 
SERVICES  AND  WORKS, 

of  employment  in  general,  and  the  mode  of  payment,  231. 

the  statute  of  frauds  touching  works  which  are  not  to  be  performed  within  a 
year,  lb. 
of  the  performance  of  works,  and  payment  either  at  a  stipulated  price  or  upon    a 

quantum   meruit,  236. 
in  an  action  for  reward  for  services,  the  employer  may  show  the  badness  of  the 

work,  &c,   so  as  to  reduce  the  claim,  239. 
deviation  from  a  building  contract  for  a  specific  price,  by  additional  works,  &c, 

how  the  party  is  to  be  paid,  236. 
contracts  and  promises  for  services  and  works  without  consideration,  void,  241, 
by  surveyors,  243. 
surgeons  and  apothecaries,  244. 
physicians,  246. 
counsel,  247. 

attornies,  solicitors,  and  proctors,  lb. 
commissioners  to  examine  witnesses,  255. 
arbitrators,  lb. 
clergymen,  lb. 
stage  performers,  256. 
schoolmasters,  258, 
printers,  259. 
apprentices,  lb, 


650  INDEX. 

SERVICES  AND  WORKS,  (continued.) 

by  bailiffs  of  cities,  &c.  at  elections,  in  providing  booths,  &c,  260. 
in  procuring  the  sale  of  an  estate,  or'annuity,  or  obtaining  a  tenant  &c,  260.  265. 
procuring  a  sum  of  money,  261. 
endeavouring  to  obtain  a  pardon,  262. 

for  obtaining  information  to  enable  a  party  to  receive  stock,  &c,  lb. 
rendered  with  a  view  of  being  rewarded  by  a  legacy  or  other  gratuitous  remunera- 
tion, 263. 
SHERIFFS.     See  Money  Had  and  Received  and  Paid  by,  353. 

what  contracts  made  with  sheriffs  void  by  the  common  law,  56. 

— — — statute  law,  60. 

SIMONIACAL  CONTRACTS,  void,  36. 

SMUGGLING, 

what  contracts  are  void  upon  the  ground  of  smuggling,  64. 

SOLICITORS.    See  Services  and  Works. 

SOUTHERN  WHALE  FISHERY, 

shares  of  an  adventure  between  a  captain  and  his  crew,  how  recoverable,  302. 

STAGE  PERFORMERS.    See  Services  and  Works. 
STAKEHOLDER, 

in  what  cases  money  had  and  received  by  him,  may  be  recovered  back,  271. 

STAMPS, 

of  the  stamp  duty  payable  on  contracts  and  agreem  ents,  44. 
of  the  exemption  relating  to  the  sale  of  goods,  45. 

letters,  &c,  51. 

what  other  agreements  not  within  the  stamp  acts,  46. 

of  agreements  relating  to  different  subjects  on  the  same  paper,  &c.,  49. 

of  the  effect  of  altering  an  agreement  after  it  has  been  executed  and  delivered,  lb. 

STATUTE  OF  FRAUDS.    See  Frauds,  statute  of, 
STIPULATED  DAMAGES.    See  Pencdty  and  Stipulated  Damages. 

STOCK  IN  THE  PUBLIC  FUNDS,  &c.  NOT  MONEY,  84. 

contracts  to  aecept  or  replace  stock,  426. 
STOCK-BROKER, 

cannot  recover  differences  paid  on  time  bargains  for  his  principal,  387.  404. 

STOCK-JOBBING  TRANSACTIONS  VOID  BY  STATUTE,  62. 

SUNDAY, 

sale  of  goods  in  the  ordinary  trade  of  the  vendor  void,  but  not  otherwise,  60. 

SURGEON  AND  APOTHECARY.    See  Services  and  Works. 

SURVEYORS.    See  Services  and  Works. 

SURETY.     See  Principal  and  Surety. 

SUTLERS, 

an  agreement  by  a  person  supplying  a  regiment,  to  pay  to  two  sutlers  a  certain  sum 
per  diem,  for  every  ration  they  should  leave  in  the  magazine,  is  void,  58. 


T. 

TOLL-GATE  KEEPER, 

taking  excess  of  toll,  359. 

TRADE, 

an  agreement  for  a  limited  restraint  of  trade  is  valid,  438. 
but  for  a  total  restraint  it  is  void,  lb. 


INDEX.  651 

TRUSTEES.    Sec  Money  Had  and  Received. 

U. 

USURY.    See  Money  Had  and  Received. 
usurious  contracts  void,  61. 
taking  usurious  interest,  when  recoverable  back,  365. 

V. 
VOLUNTARY  PAYMENTS,  338.  392. 

W. 

"WAGES.    See  Master  and  Servant. 
WAGER  POLICIES,  illegal,  63. 

WAGERS, 

what  wagers  are  void,  57. 

legal,  and  of  actions  thereon,  371. 

WAREHOUSEMEN, 

when  liable  for  loss  or  damage  of  goods,  593. 
WARRANTY  OF  CATTLE  OR  GOODS.    Sec  Sales. 

WHARFINGERS, 

when  liable  for  goods  left  at  a  wharf,  &c,  592. 

WORK  AND  LABOUR.    See  Services  and  Works. 


A 

TABLE 

Explanatory  of  Abbreviations  of  References  to  Books 

IN    THIS    WORK. 

Atk Atkin's  Reports. 

A?nbl Ambler's  Reports. 

Andr Andrew's  Reports. 

Bl.  Com Blackstone's  Commentaries. 

Bl.  Rep Sir  W.  Blackstone's  Reports. 

Bac.  Abr Bacon's  Abridgment. 

Barnard Barnardiston's  Reports. 

Bui.  Ni.  Pri.    .  .  Buller's  Nisi  Prius. 

Barn.  <$•  Aid.  .  .  Barnewall  and  Alderson's  Reports. 

Bro.  Pari.  Cas.  .  Brown's  Parliamentary  Cases. 

Bro.  Ch.  Cas.  .  . Chancery  Cases. 

Burr Burrow's  Reports. 

Bulst Bulstrode's  Reports. 

Bos.  Sf  Put.  .  .   .  Bosanquet  and  Puller's  Reports. 

Bro.  Abr Brook's  Abridgment. 

Brod.  <Sf  Bing.  .  .  Brodrip  and  Bingham's  Reports. 

Bing Bingham's  Reports. 

Barn.  6f  Cres. .  .  Barnewall  and  Creswell's  Reports. 

Co.  Lit Coke  upon  Littleton. 

Com.  Dig Comyn's  Digest. 

Cro.  Eliz Croke  Elizabeth's  Reports. 

Cro.  Car Charles's  Reports. 

Cro.  Jac James's  Reports. 

Coup Cowper's  Reports. 

Campb Campbell's  Reports. 

Cart Carter's  Reports. 

Com.  Rep Comyn's  Reports. 

Cahh Carthew's  Reports. 

Comb Comberbach's  Reports. 

Dy Dyer's  Reports. 

Doug Douglas's  Reports. 

Danv Danver's  Abridgment. 

Dow Dow's  Reports  in  Parliament. 

Dowl.  <y  Ryl.   .     Dowling  and  Ryland's  Reports. 

East  or  East  Rep.  East's  Reports. 

Esp.  Rep Espinasse's  Reports  of  Cases  at  JNisi  Pnus. 

Fitzgib.  or  Fitzg.  Fitzgibbon's  Reports. 

Godb Godbold's  Reports. 

Hob Hob  art's  Reports. 

Holt's  Ni.  Pri.    .  Holt's  Nisi  Friu^  <  !ases. 

H.  Bl Henry  Blackstone's  RrpoiK. 

Hardw     Cases  Tempore  Hardwickc. 

Hardr Hardres'  Reports. 

Inst Coke's  Institutes. 


654  TABLE  OF  ABBREVIATIONS. 

Jenk Jenkin's  Cases. 

Keb Keble's  Reports. 

Lev Levinz'  Reports. 

Leon Leonard's  Reports. 

Lord  Raym.     .  .  Lord  Raymond's  Reports. 

Lutw Lutwich's  Reports. 

Moor Moor's  Reports. 

Mo Moore's  Reports. 

Mar.  or  Marsh.  .  Marshall's  Reports. 

MaM%Ss'  ^  \  Maule  and  Selwyn's  Rep°rts- 

Man.  Index.  .  .  .  Manning's  Index. 

Mod Modern  Reports. 

New  Rep.  C.  P.  .  New  Reports  Common  Pleas. 

PL  Com Plowden's  Commentaries. 

Poph Popham's  Reports. 

Phil,  on  Evid.  .  .  Phillip's  Law  of  Evidence. 
Peake  N.  P. .   •  .  Peake's  Nisi  Prius. 

7\7-  p  •  (  Peake's  Cases  at  Nisi  Prius. 

P.   Wms Pierre  Williams's  Reports. 

Price  Rep Price's  Reports  in  the  Exchequer. 

Rol.  Abr Rolle's  Abridgment. 

Rol.  Rep Rolle's  Reports. 

Rose Rose's  Bankrupt  Cases. 

Salk Salkeld's  Reports. 

Sid Siderfin's  Reports. 

Slra Strange's  Reports. 

Show Shower's  Reports. 

Sty Style's  Reports. 

Shep.  Touch. .  .  .  Sheppard's  Touchstone. 

Sound Saunders's  Reports. 

Stark.  » Starkie's  Reports. 

Skin Skinner's  Reports. 

Selw Selwyn's  Nisi  Prius. 

Scho.  <$f  Lef.    .  .  Schoales  and  Lefroy's  Reports. 
Swan.  Rep.    .  .  .  Swanston's  Reports. 
Term  Rep.  Sf  T.R.  Term  Reports. 
Taunt.  Rep.  .  .  .  Taunton's  Reports. 

Talb Talbot's  Reports. 

Ves.  jun Vesey  junior's  Reports. 

Vent Ventris'  Reports. 

Vin.  Abr Viner's  Abridgment. 

Wils Wilson's  Reports. 

Yelv Yelvcrton's  Reports. 


# 

THE    END. 


m 


V 


